Case of the Day – Friday, January 2, 2026

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A “READILY APPARENT” THUMP

journeyends140312A great philosopher perhaps put it best: a very long journey can sometimes end suddenly… and rather badly.

Howie Conine should have had the Despair, Inc. “Ambition” poster on his wall, where he could have contemplated its message. He surely could empathize with the hapless salmon. He and his wife had their journey end one rainy day on Washington State Route 524 – suddenly and very, very badly. A redwood tree on County of Snohomish land – the hazardousness of which was “readily apparent” – fell on their car with a readily apparent thump.

The law of the jungle gives the poor king salmon no right of appeal, no habeas corpus, no forum for damages suffered when her trip upstream ends so precipitously in the jaws of an ursus arctus horribilis. Fortunately for the Conines, the law of Washington State was more hospitable after the tree fell onto their passing car (with them in it). If anything, it was a perfect storm for them: they possessed evidence that the dangerous condition of the tree was “readily apparent,” they were in a notoriously friendly plaintiff-friendly, and they had two defendants to choose from, both of which were governments and thus “deep pockets.”

But from whom to collect? The State of Washington, the government that, the Conines argued, had a duty to keep the highways safe from falling trees? Or perhaps the County of Snohomish, the government that, the Conines averred, had a duty to protect passers-by from dangers arising from trees on its land?

This is America – land of the free and home of the litigious! Why not sue both?

That is precisely what the Conines did.

angryjudge140312Unfortunately, they ran into an uncooperative trial court, one which held that neither Washington State nor Snohomish County had any obligation to inspect the trees along the road, even one with “this readily apparent hazard.” The trial judge threw the Conines out of court. They had more luck with the Court of Appeals, which reversed the trial court’s decision and remanded the matter for trial on the merits. There was enough evidence – chiefly from the Conines’ hired-gun expert – that the tree was obviously dangerous to let the case go to trial.

The lesson: when you need a good expert, there’s just nothing else that will do.

Conine v. County of Snohomish, 2007 Wash. App. LEXIS 1102, 2007 WL 1398846 (Ct.App. Wash., May 14, 2007). Howard and Karen Conine were driving on State Route 524 when a red alder tree standing on an embankment on the west side of the road fell on their car. The tree had been located about 10 feet outside the State’s right-of-way on land owned by Snohomish County. The Conines sued the State of Washington for failure to maintain the state highways in a safe condition and the County for failure to remove an obvious hazard from its property.

The Conines’ arborist testified that during the 6-12 months immediately preceding the tree’s failure, the tree’s appearance should have put anyone looking at it on notice that it was dead and decaying. The arborist said the tree was probably leaning 10 to 15 degrees downhill toward the road and would have been in the highest-risk category due to its condition and proximity to a public right-of-way. The DOT’s maintenance technician who removed the tree after the accident said the tree’s “root ball had come loose from the soil owing to the very wet conditions we had in January 2003.”

The trial court held that neither the State nor the County had a “duty to look for this readily apparent hazard” and granted summary judgment to the State. The Conines appealed.

Held: The summary judgment was reversed. The State’s liability to users of a road is predicated upon its having notice, either actual or constructive, of the dangerous condition that caused injury unless the danger was one it should have foreseen and guarded against.

The Conines conceded that the State did not have actual notice, but they argued that the tree’s visibly dangerous condition created constructive notice. The Court found that the question to be answered was whether, for constructive notice, the State had a duty to look for a readily apparent hazard. Although the Washington Supreme Court had held in another case that where the tree was on a remote, mountainous, sporadically traveled road, a high threshold for constructive notice of danger was needed to trigger a duty to inspect and remove a dangerous tree. But here, the road was a state highway in a populated area, and the risk to the traveling public shifted the risk analysis. What’s more, in the other case, the Supreme Court found that the tree that fell was no more dangerous than any one of the thousands of trees that lined mountain roads. By contrast, the Conines’ expert testified that the tree that fell was obviously a hazard. The differences, the Court said, precluded a finding that the State lacked constructive notice as a matter of law. Constructive notice that a tree was dangerous gives rise to a duty to inspect. Thus, summary judgment was improperly granted on the basis of no duty to inspect.

treefalloncar140212The Conines also contended that Snohomish County faced liability as the landowner of the property upon which the tree stood because the owner of land located in or adjacent to an urban or residential area has a duty of reasonable care to prevent defective trees from posing a hazard to others on the adjacent land. The County argued that it had no such duty because the tree was a “natural condition of the land.”

The Court held that when the land is located in or adjacent to an urban or residential area and when the landowner has actual or constructive knowledge of defects affecting his trees, he has a duty to take corrective action. The area in question was next to the City of Lynnwood and zoned urban residential. Thus, it was urban in character. The Conines produced expert evidence that the subject tree was obviously dead or dying and leaning for two years, that it looked like a forked snag and lacked fine or scaffold branches. This evidence, the Court said, created an issue of material fact as to whether the tree was in a defective condition and the condition was of sufficient visibility and duration to give the County constructive notice of a potential hazard.

– Tom Root

TNLBGray

And Now The News …

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New York City, The New York Times, January 1, 2026: Why Is It So Expensive to Cut Down a Tree?

What is removing a tree worth? Quotes vary widely, depending on size, risk and proximity to a home or vehicles. But tree care professionals say they’ve seen a sharp increase in operating costs since the pandemic. “There are guys who bid $15,000 for a tree, there are guys who bid $1,200,” said Brandon Dolan, a certified arborist and owner of Gray Squirrel Tree Service in Napanoch, N.Y. “You can go from amateur hour, who have no clue, all the way up to top professional.” One reason for the increase in price is a labor shortage. Noel Boyer, the owner of All About Trees in Springfield, Mo., and board chair of the Tree Care Industry Association, said that a decade ago he could hire an entry-level worker for around $11 an hour. Now the starting wage is about $18, while in larger cities it’s $26. The actual cost to employers is around $45 an hour. “It’s the payroll taxes and the insurance and everything else that you put into that employee,” Mr. Boyer said…

San Francisco, California, KRON-TV, December 29.2025: Don’t keep your Christmas tree until February, SF officials say

For San Franciscans holding onto their Christmas home decor and keeping holiday vibes alive, city officials are reminding residents to toss out Christmas trees by January 16. As part of the city’s 38th Annual Christmas Tree Recycling program, from January 2 to January 16, Recology will collect unadorned Christmas trees throughout the city and turn them into compost. “Recycling your tree keeps holiday waste out of the landfill and turns it into organic compost for farms and gardens,” said San Francisco Environment Department Director Tyrone Jue. “When residents set trees out bare and curbside, crews can turn them into a resource instead of trash.” San Francisco Fire Department Chief Dean Crispen warned, “Dry trees can ignite in seconds. Recycling your tree early in January is a simple and vital step in reducing fire risk at home…”

Boise, Idaho, Boise Dev, December 31, 2025: Ancient Idaho grove boasts trees 1,000 years old and over 100 Feet Tall

Take a walk back in time in this ancient Idaho forest. The DeVoto Memorial Cedar Grove is nestled along U.S. Highway 12 in the Clearwater National Forest in North Idaho, and about 10 miles from the Montana border. Home to ancient western red cedars, visitors can walk through the grove with trees towering over 100 feet tall, and estimated to be over 1,000 years old. “Experience the timeless majesty of Idaho’s ancient forests at the DeVoto Memorial Cedar Grove—a living tribute to the natural and historical heritage of the region,” Visit North Central Idaho’s website notes. Named in honor of Bernard DeVoto, the grove pays tribute to the conservationist, historian, and editor of the Lewis and Clark journals. “When DeVoto was following the route taken by Lewis and Clark and writing his book “The Lewis and Clark Journals,” he camped at this grove and fell in love with it,” The Clearwater Story: A History of the Clearwater National Forest notes. “His favorite spot was under a massive cedar tree where he could look at the clear flowing Crooked Creek and hear it babbling over the rocks…”

Scottsbluff, Nebraska, KNEB Radio, December 30, 2025: Unusually warm weather has trees thinking it’s already Spring

It’s not even January, but you may have noticed that trees on your property and in your neighborhood are already producing the buds that they would with the annual transition from winter. Nebraska Forest Service Community Forester Chrissy Land says our unseasonably warm weather has accumulated enough degree days that trees, plants, many insects and animals are being tricked into thinking it’s spring, and time to wake up. Land tells us while fruit trees and those brought in from warmer climates are most at risk, indigenous trees should be able to tap into reserves to cope with future cold snaps. “So if they start and they end up with a freeze, if this polar vortex shows up, then we will lose that first, you know, initial spurt of growth, but then we will see the trees kind of reset…”

Texas Monthly, December 29, 2025: After the Floods, Local Botanists are Helping the River Heal

Well before the floodwater receded, the unthinkable proportions of the disaster were becoming clear. A swell several stories high swept down the narrow valleys of the Guadalupe River basin, snapping and uprooting scores of trees, many of which had stood for centuries. If the bald cypresses were no match for the churning river, neither were the houses or the cabins, or the RVs parked on its banks for the Fourth of July holiday. As reports from Kerr County would detail in the ensuing days, the flood took more than a hundred lives—young campers, whole families, and community pillars like Ron Duke, the octogenarian conservationist who had dedicated much of his life to protecting the river from encroaching development. What unfolded in the Hill Country that weekend had Texans glued to their news feeds, wondering what, if anything, they could do to help. “I remember a particular moment where I saw an image of one of these old-growth bald cypresses just floating down the river,” said Andrew Labay, a horticulturist and the vice president of gardens at the San Antonio Botanical Garden. The megaflora tower over the region’s waterways, pitching feathery canopies and anchoring the river’s ecosystem. It was clear to Labay that behind the horrible human tragedy, there was a natural disaster that would also devastate the region’s ecology…

Little Rock, Arkansas, Democrat Gazette, December 29, 2025: Old Christmas trees can become fish habitat

After the holiday cheermeister calls an end to a season of tinsel, lights and carols, the fate of many real Christmas trees is a gloomy trip to the nearest landfill. The Arkansas Game and Fish Commission has a second, far more meaningful life for these one-use evergreens as crucial underwater habitat for Arkansas’ fish populations. The Natural State is full of fantastic water to wet a line and enjoy a day of angling, but the natural cover available in some lakes has grown quite “grinchy,” perhaps two sizes too small. The addition of a few firs or cedars left from your holiday cheer can add cover for fish and create a fishing hot spot. Game and Fish has set up a network of locations where anyone can drop off their used Christmas trees. In Northwest Arkansas trees can be donated at Beaver Lake at the Arkansas 412 bridge, Arkansas 12 bridge and Monte Ne accesses. Drop them at boat ramps at Lake Elmdale and Bob Kidd and Crystal lakes. Trees are free for any angler to use for habitat. Game and Fish biologists recommend tying cinder blocks or sandbags to the trees with paracord to weigh them down. The cord will hold the trees down until they are waterlogged and settle on the bottom…

Econews, December 26, 2025: In a quiet village in Crete, an olive tree between 2,000 and 4,000 years old continues to produce new leaves and small olives, as if time had stood still

In a quiet village on the Greek island of Crete, an olive tree older than many empires is still pushing out new leaves and small green fruits. The Vouves olive tree, as locals call it, has watched caravans, warships, and now rental cars pass by, yet it continues its slow, steady life. Scientists estimate this tree in Ano Vouves to be between 2,000 and 4,000 years old, and some local authorities stretch that range up to 5,000 years. What most experts agree on is simpler: it is one of the oldest producing olive trees in the world, still giving olives and drawing around 20,000 visitors a year to this hillside corner of western Crete. The Vouves olive tree belongs to the same species that fills supermarket bottles today, Olea europaea. Its trunk is thick, twisted, and full of hollows, but the crown stays green, and it continues to flower and fruit almost every year, offering modest but regular harvests…

Boston, Massachusetts, WHDH-TV, December 29, 2025: Family farm in Georgetown hosting annual Christmas tree drop off for goats to feast

A Georgetown farm is providing a nice holiday treat for some goats. Great Rock Farm is hosting its annual Christmas tree drop off on January 10. The event allows people to dispose of their Christmas trees after the holidays so the farm’s goats can have a snack! The farm says it’s beneficial for both people and goats. “The Christmas trees are great for the animals to have a little fun, to nibble on, its a great natural de-wormer,” one worker said…

Washington, D.C., Post, December 26, 2025: Christmas tree fire leaves four injured in Bethesda

A dry Christmas tree caught on fire, destroying the first floor of a Bethesda, Maryland, home and injuring four people and a family dog, Montgomery County fire officials said. More than 60 firefighters responded to 10300 block of Fleming Avenue to fight the blaze inside a single-family home just before 5 p.m. Christmas Day, according to Pete Piringer, a fire department spokesman. Fire officials believe an electrical failure in a strand of lights from the 1980s likely caused the tree to ignite, Piringer said. The residents noticed the fire before smoke detectors alerted, but before they could locate an extinguisher, “the room erupted in flames, catching a nearby couch and other combustibles on fire,” Piringer said…

Martha Stewart Living, December 26, 2025: Can You Trim Your Neighbor’s Tree if It’s Hanging Over Your Property Line?

Perhaps your neighbor’s crepe myrtle is getting a bit unruly, or you’re tired of their walnuts staining your ceramic pavers. Whatever the reason, you may want to trim the branches of a neighbor’s tree—but is that allowed? Generally, a homeowner can trim branches extending over their property line—but there’s a catch. Laws vary significantly from state to state, and even from county to county. Decoding these different rules and regulations can feel daunting. Here, we spoke to legal and landscape experts about when to pick up the pruners—and how to talk to your neighbor about it. Tree ordinances vary between municipalities. Under New York law, where Richard Klein, partner and co-chair of the real estate practice at Dorf Nelson & Zauderer LLP, is based, if a tree’s branches extend over your property line, then the property owner has the right to remove those overhanging branches up to his or her property line. “However, some trees are considered rare or endangered, and therefore protected under state law,” Klein says. “Certain trees, shrubs, bushes, and flowers fall under Environment Conservation Law. For these, the removal will require the neighbor’s permission, and may even require obtaining a permit from the municipality.” The key point: All property owners should first check their local guidelines…

TNLBGray

Case of the Day – Wednesday, December 31, 2025

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DOING NOTHING MAY BE A VERY GOOD OPTION

Yesterday, we considered whether my friend, Kirk Piper, was on a slippery slope in letting the sledding public have the run of Logan’s Hill. This peculiarly good winter coasting venue happened to come with the property on which he lived. Being a guy who is comfortable wearing both a belt and suspenders, Kirk had a deal with the City pursuant to which if he permitted recreational use of the hill next to his house, City liability insurance would cover such use of the hill. But, he wondered, what would happen if liability exceeded the insurance limits, or the City dropped coverage, or the Finance Director forgot to mail the premium, or some other calamity led to his being in the defendant’s dock as a result of what happened to the sledders using the hill?

Between cups of mulled wine at Kirk’s Christmas party last week, I told him about the wonders of Ohio’s recreational use statute. Sledding seemed to me to be the type of recreational activity that should be covered by § 1533.181 of the Ohio Revised Code. Naturally, my interest was piqued, and unsurprisingly, I found that the question had already been asked and answered in court.

But, as I noted yesterday, there is an important limiting factor. Land used for recreational purposes often is undisturbed, full of groundhog holes, dead trees, unmarked bogs, crocodile dens, and the like. In fact, the land’s undisturbed nature is often what makes it attractive for recreational use to begin with. For that reason, the recreational use statute exempts guys like Kirk from liability for the condition of the land on which the public may take its recreation.

Hogan’s Hill, for example, has a water hazard, a creek that is easily reached by the faster sleds. Many kids have had to bail out just before sleds topple over the bank into the thin ice and cold water. Suppose Hogan’s Hill was an amusement park attraction, with the creek being a feature rather than a bug. In that case, you can be sure that liability for damaged sleds and injured kids resulting from crashing into the creek would attach to the park operator. But because it is a natural feature of Hogan’s Hill, users are the captains of their own ship.

But what if Kirk, in a well-intentioned effort to improve Hogan’s Hill for the public, decided to bulldoze a few moguls or reroute the creek through some concrete culverts? And halfway through the work on a winter’s day. he parks his bulldozer at the bottom of the hill to go inside for a cup of that mulled wine? And while he’s gone, little Johnny and Judy race down the hill on a toboggan and collide with the dozer’s blade?

Or say Kirk used the dozer to dig a 10-foot deep pit just before the creek to stop sleds before reaching the water, and Johnny and Judy run their toboggan into the hole?

In a case like that, the liability issue is murkier. When it comes to the hill, doing nothing to alter or repair its natural conditions – even if the alteration makes perfect sense – might not just be an option, but even perhaps a better option.

Combs v. Ohio Dep’t of Natural Resources (2016), 146 Ohio St. 3d 271. Richard Combs was celebrating his birthday at Indian Lake State Park, which is open to the public without an admission charge. He spent the night fishing and early the next morning walked to Pew Island, where the fishing is better. As Rich walked across the causeway to Pew Island, Jerry Leeth, an ODNR employee, was using a boom mower to cut weeds and brush along the lakeshore. One of the mower blades threw a rock that struck Rich in the eye and face, and caused serious injuries.

Rich sued ODNR in the Court of Claims, alleging that Jerry negligently operated the boom mower and caused his injury. The Court of Claims granted ODNR’s motion for summary judgment, holding that because Rich was a recreational user, ODNR had no duty to keep the park safe for his entry or use, and his negligence claim was thus barred as a matter of law.

The court of appeals reversed the decision, holding that although the recreational user statute abolished a property owner’s duty to keep its premises safe for use by recreational users, it provides immunity only for injuries caused by the defective condition of the premises. The appellate court held that because Rich claimed that he was hurt by an ODNR worker’s negligence and not by a defect in the premises, the recreational user statute did not apply.

Richard appealed to the Ohio Supreme Court.

Held: ODNR was not entitled to immunity under the recreational user statute ORC § 1533.181, because Rich’s injuries did not arise from a defective condition of the premises, but rather from negligent mowing by an ODNR employee, and, as such, ORC § 1533.181 did not apply.

The Court noted that ORC § 1533.181, the recreational user statute, provides that no landowner owes any duty to a recreational user to keep the premises safe for entry or use or extends any assurance in that regard. Under the statute, a landowner is not liable to a recreational user for injuries caused by the defective condition of a recreational premises.

At common law, a landowner owed a duty to those who entered the premises, depending on whether the people were invitees, licensees, or trespassers. A landowner owed an invitee – someone the landowner had invited onto the property – the duty to exercise ordinary care to render the premises reasonably safe. The landowner owed no duty, however, to a trespasser or licensee upon the land except to refrain from wanton, willful, or reckless misconduct which is likely to injure him.

The common law also recognizes that a landowner, being aware of the presence of a licensee, or even a trespasser, is required to use ordinary care to avoid injury to him arising from the active negligence of such owner or his servants. The duty to exercise such reasonable care arises after the landowner knows or should know that a licensee or trespasser is on the land.

The recreational user statute amends the common law rule. Instead of common law distinctions based on the status of the person on the land, the duty owed depends solely on whether the person using the property qualifies as a recreational user. The statute limits landowner liability for injuries to recreational users in three ways: (1) no landowner owes any duty to a recreational user to keep the premises safe for entry or use; (2) granting permission to enter the property is not an assurance that the premises are safe; and (3) a landowner is not liable for injuries caused by the act of a recreational user.

But the statute has its limits. The Court observed that the legislature could have excused a landowner from any duty whatsoever to any recreational user, “but tellingly, it did not do so.” Instead, the statute does not abrogate a landowner’s common law duty to exercise reasonable care to avoid negligently injuring those on the premises, and – in the absence of language clearly showing the intention to supersede the common law – the existing common law continues in full force.

Accordingly, the Court ruled, the recreational user statute does not limit a landowner’s liability for a negligently inflicted injury that does not arise from the condition of the premises. In this case, Rich’s injuries did not arise from a defective condition of the premises but rather from Jerry’s alleged negligent operation of the mower. ORC § 1533.181 simply does not apply in these circumstances.

– Tom Root

TNLBGray

Case of the Day – Tuesday, December 30, 2025

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SLIP SLIDING AWAY

A few nights ago, my bride of 46 years and I enjoyed a pre-Christmas open house at a friend’s beautiful hillside stone house on Chestnut Street in our fair city.

To one side of the house is a steep hill about 120 feet wide known throughout town as “Hogan’s Hill.” Over a distance of 90 feet from the top of the hill to the bottom, the hill falls 30 feet, a 33% grade. Ask any trucker: a 33% grade is serious business.

After reaching the bottom, the land is flat for another 150 feet, until it falls three feet into a creek.

In other words, Hogan’s Hill is a perfect sledding venue. You fall like a rock for the first 90 feet of travel and then run over fast snow for another 150 feet. A wise sledder will jump off the sled before careening into the creek.

Hogan’s Hill has been my hometown’s sledding hill of choice – according to our local historian – for over a century. When my wife’s father was young, he sledded on the Hill. So did my wife, and 30 years later, so did our kids. This year, our grandsons would have gotten a run (on a sled with Grandpa Me) down Hogan’s. The weather wasn’t especially willing at 61º, however, despite the promise of a monster winter storm only a few states away.

Now the rub: Hogan’s Hill is part of the property on which the hillside stone house sits. That means it belongs to my friend Kirk Piper.

Any reasonable homeowner owning Hogan’s Hill ought to be scared to death that dozens of strangers would freely gather on his property and race down the hill on sleds, running into the icy creek, into trees and into each other. Over some excellent beef brisket the other night, I asked Kirk about his liability.

Kirk said the City had reached an agreement with him when he bought the property that the Hill would be covered by the City’s liability insurance policy. However, he was not sure whether he might have liability in the event of an accident in excess of the City’s policy, or whether the City could demand contribution from him in the event that something happened on the hill that insurance refused to cover.

Fortunately for Kirk, I read this column regularly (a necessity, because I write it). Because I was enjoying his beef and beer, I felt obligated. So I asked him, “How much do you charge to let people sled?”

“Nothing,” he said.

“What have you done to fix up Hogan’s Hill for sledding?”

“Not a thing,” he replied. “Should I?”

Heavens, no, Kirk. Keep Hogan’s unimproved, don’t sell tickets, don’t do anything. If you follow that advice, those sledders are recreational users, and they are on their own.

Marrek v. Cleveland Metroparks Board of Commissioners, 9 Ohio St. 3d 194 (Supreme Ct. Ohio, 1984). Sally Marrek was sledding in the Hinckley Reservation of the Cleveland Metroparks System, the City’s “Emerald Necklace.” Gary Wascovich negligently struck her face with his foot. As a result, Sally suffered face and eye injuries.

Sally sued the Metroparks and Gary. The trial court granted the park district’s motion to dismiss the complaint based on Ohio’s recreational user statute and governmental immunity.

Sally appealed, and the case ended up at the Ohio Supreme Court.

Held: The Metroparks system is not protected by governmental immunity, but it is immune from liability under Ohio’s recreational use statute.

The court held that the conduct Sally claimed to be the tort of negligence involved the carrying out of previously established policies or plans, thus making the park district liable to the sledders as private corporations and persons. Thus, Sally’s complaint should not have been dismissed on the basis that the park district was protected by governmental immunity.

However, the Court said, Sally was a gratuitous user who entered the premises for sledding, a recreational pursuit.

Section 1533.181 of the Ohio Revised Code, Ohio’s recreational use statute, holds that no owner, lessee, or occupant of premises owes any duty to a recreational user to keep the premises safe for entry or use. Under ORC § 2743.02(A), the recreational use statute applies to state-owned lands. Thus, public landowners are liable to the same extent as private landowners under this statute.

According to ORC § 1533.181(A)(1), no owner of the premises owes a duty to a recreational user to keep the premises safe for entry or use. A recreational user is defined in § 1533.18(B) as a person to whom permission has been granted, without payment of a fee or consideration to the owner, lessee, or occupant of premises – other than a fee or consideration paid to the state or any of its agencies – to enter the premises to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits.

Statutory immunity for landowners in situations such as this one, the Court noted, promotes the development and availability of property for recreational use and is consistent with the public policy reflected in the recreational use statute. The purpose of the statute, the Court ruled, is “‘to encourage owners of premises suitable for recreational pursuits to open their land to public use without worry about liability.'”

Sally was a gratuitous user, the Court ruled, and she entered the premises for sledding, a recreational pursuit. Therefore, the requirements of ORC § 1533.181 were met, meaning the park district did not owe a duty to Sally, a recreational user, to keep the premises safe for use.

That’s a wonderful thing for Kirk… provided he does nothing to Hogan’s Hill. We’ll see why doing nothing is not only an option but the smart one, tomorrow.

– Tom Root

TNLBGray

Case of the Day – Monday, December 29, 2025

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SUED FOR NOT HAVING LAWS AGAINST SUCH A THING

Looking for the deep pocket is a time-honored tradition in personal injury law. Today’s case, dating from 1931, proves that point.

The first rule of plaintiffs’ advocacy … look for the deep pockets.

A young boy and his uncle were riding in a one-horse open wagon down the center of a public street. A homeowner had hired a couple of guys to cut down a tree along the street. For whatever reason (but probably because the workers were knuckleheads), the tree fell onto the wagon, injuring the occupants.

“Straightforward enough,” you say, “so where’s the catch?” It’s here: before cutting the tree, the contractors went to the mayor to ask about permits. The mayor, a dentist by trade, advised that there were no teeth in the local ordinances and no permit was needed to cut down a tree.

He was right, not that that mattered much. The injured boy’s guardian sued the city for not making sure that the tree cutter cut the tree down safely. Reduced to its essence, the claim seemed to say the City had money, and no other defendant did, so it must be liable somehow.

A jury agreed, but the Supreme Court reversed.

There can be little doubt that the City was sued in this early Depression-era tale, because the City was the only party likely to be able to pay a judgment. Finding someone with money is always a good idea in a personal injury case, but there are technicalities – such as the party with money should somehow be liable to the victim – that should be observed.

Here, the theory seemed to be that the City should have had laws against unsafe tree removal, and its failure to have such ordinances on the books somehow made it responsible for the plaintiff’s injury.

Armstrong v. Waffle, 236 N.W. 507 (Supreme Court, Iowa, 1931). Three-year-old Biff Armstrong sustained personal injuries resulting from a homeowner’s removal of a tree in front of his house along a city roadway. The contractor hired to remove the tree asked the mayor of the City of Marion if a permit was necessary to remove the tree. The mayor said that he knew of no permit that was needed to remove the tree, and there was no ordinance in the City of Marion governing the cutting and removal of trees.

The contractor cut the branches from the tree until he was left with a stump of some 14 or 15 feet in height. Just before the Neffs were ready to saw the tree off, and while they were working with the branches, Joe Armstrong, an uncle of the plaintiff, a drayman by occupation, drove north in a dump wagon. Joe had Reuben, a child of about 3 1/2 years old, on the seat of the wagon with him. The tree suddenly fell across the front of the wagon and crushed him and the child, breaking Joe’s leg and severely injuring the boy.

The boy’s guardian sued the landowner, the contractor and the City of Marion. The jury found in favor of the plaintiff against the City, and the City appealed.

Held: The Court found the contractor to be negligent in felling the tree, but the City of Marion was not liable.

The Court held that the City’s liability was restricted to keeping the streets open and in repair and free from nuisance. Armstrong did not allege any nuisance existed in this case, nor did he claim that the City failed in its duty in not barring travel on the street or otherwise warning him of the danger incident to the removal of the tree.

The City alleged that the claim against it pertained to a governmental function or duties of the City for the breach of which the City is not liable. The City contended that its duty related only to construction, maintenance and repair of the street and that a municipality cannot be held liable for failure to protect citizens against actions occurring on its streets for reasons other than defects therein or by reason of a nuisance.

A municipality does not guarantee its citizens against all causalities incident to humanity, and cannot be called upon to compensate a party for its inability to protect against all accidents and misfortunes. There was no ordinance in the City regulating or prohibiting the removal of the tree. The City had a right to assume that the tree’s owner and his agents would exercise a proper degree of care to prevent injury to people on the street at the moment the tree fell.

– Tom Root

TNLBGray

Case of the Day – Friday, December 26, 2025

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WRONGFUL TREES

camelnose141003

For all of the Latin phrases, hidebound traditions, and libraries full of precedent, the law at its essence is nothing more than a codification of policies generally accepted by society. The law doesn’t always get it right – some laws aren’t carefully drafted, others do exactly what the legislature intended but pursue foolish or even repugnant policies – but by and large, the law tries to lay out rules for conduct based on policies generally accepted to be important.

Keeping an eye on the prize – the societal goals to be achieved – often helps courts from going overboard. It’s how the camel’s nose can be allowed into the tent without getting the whole camel in the process.

A good example of this is the “wrongful life” lawsuit. States all allow a “wrongful death” action, in which the survivors of someone killed, say, in a car accident or from medical malpractice sue for damages. This makes good sense. But in the last decade or so, some “wrongful life” suits have been brought, where – for example – a physician misdiagnoses and tells prospective parents that their fetus is healthy, but the doctor is wrong. The child is born with severe birth defects. The “wrongful life” suit claims that but for the physician’s negligence, the child would have been aborted.

Very few courts have permitted such a lawsuit for several very good public policy reasons. The first is that society does not recognize, as a matter of policy, that anyone is better off not having been born, no matter how severe the burdens of congenital disability. Second, the whole idea of tort law is to place the injured party in the same position as he or she would have been in had the negligence not occurred. But for the negligence, the injured party wouldn’t have been born. What can be done to put a living plaintiff in that position, or, ­for that matter, to compensate for having been born instead of never being?

And what would have made Ms. Lewis happy? Perhaps if the Krussels had only clearcut their property ...

Just what would have made Ms. Lewis happy? Perhaps if the Krussels had clearcut their property …

All right, that’s pretty heady stuff, but what does that have to do with tree law? Simply this: in today’s case, the plaintiff, Ms. Lewis, suffered from having a tree belonging to her neighbors Gary and Nancy Krussel fall on her house. Her suit simply claims: the tree fell on her house; the neighbors knew they had a tree; therefore, the tree was a nuisance; and the neighbors were negligent in failing to keep the tree from falling on the house. There was no evidence that the Krussels had any inkling this particular hemlock was going to fall. There was no evidence any reasonable person would have had such an inkling. In fact, there was no evidence that the tree was diseased or damaged. Reduced to its essence, Lewis’s claim was that the tree existed and the tree later fell, and those facts made it a nuisance. The tree was alive, the argument seems to say, and that fact wronged Ms. Lewis.

Fortunately, the Washington state courts made short work of this claim. Ms. Lewis was trying to advance a negligence claim as a nuisance claim, probably because she had no evidence of negligence. But, the courts ruled, public policy was not ready to declare a tree a nuisance merely because it was growing, nor was it prepared to hold that property owners were liable for what became of any naturally-growing, healthy trees on their land.

Without keeping one eye on public policy, the courts’ development of the law might go like this: First, landowners are responsible for damage caused by trees on their property that are diseased or damaged, and about which condition they are actually aware or reasonably ought to be aware. The next step would be for the courts to rule that owners must inspect their trees to avoid liability. Finally, landowners would be strictly liable for any damage caused by their trees, whether they were aware of a problem with the trees or not.

camelnose140310Largely, the law has stopped short of such a draconian rule, because the courts recognize that public policy favors the natural growth of trees, and eschews requiring property owners to devote substantial time and money to inspect trees, where there is no concomitant benefit to the public. By and large, courts have enough policy sense to let the camel’s nose into the tent while keeping the rest of the dromedary outside.

It is this kind of analysis that is illustrated in today’s case.

Lewis v. Krussel, 101 Wash.App. 178, 2 P.3d 486 (Ct.App. Wash. 2000). During a windstorm, two large healthy hemlock trees fell on Dawn Lewis’s house. She sued Gary and Nancy Krussel, who owned the property on which the trees had been growing.

Krussel acknowledged that windstorms had knocked down other trees on his property and other properties nearby in previous years. About a week after the windstorm at issue here, another windstorm knocked a tree onto his mother’s mobile home. But the trees that damaged the Lewis house were natural growth, and Krussel had no reason to believe that they were any more dangerous than any other trees on his property under normal conditions. After the damage to the Lewis house, Krussel cut down other hemlock trees located near his house upon the recommendation of the local utility district.

After Lewis sued for nuisance and negligence, Krussel moved for summary judgment. He supported the motion with evidence from a professional forester who inspected the stump of one of the fallen trees and found no evidence of rot. The forester concluded the tree that fell on the Lewis house was no more dangerous than any other tree standing on the Krussels’ property, and there was no way for the Krusselses to determine beforehand whether any one of their trees would fall over. The trial court dismissed the Lewises’ claim, and Lewis appealed.

Held: The appeals court upheld the dismissal of Lewis’s claim.

Sure Ms. Lewis's house was crushed ... but gravity did not turn the healthy tree that toppled onto her roof into a nuisance.

Sure Ms. Lewis’s house was crushed … but gravity did not turn the healthy tree that toppled onto her roof into a nuisance.

A homeowner is not obligated to remove healthy trees because they might topple in a storm. The Court of Appeals said that just because a negligence claim was disguised as a nuisance suit didn’t mean that the trial court had to consider it as such. Instead, in situations where the alleged nuisance is a result of what is claimed to be negligent conduct, the rules of negligence are applied.

The elements of a negligence cause of action, of course, are (1) the existence of a duty to the plaintiff, (2) a breach of the duty, and (3) injury to the plaintiff flowing from the breach of duty. An owner of property located in an urban or residential area who has actual or constructive knowledge of defects affecting his or her trees has a duty to take corrective action. However, the same is not the case when the tree is healthy. In that case, the owner does not have a duty to remove healthy trees merely because the wind might knock them down.

In this case, the Court agreed, there was no evidence that Krussel had any reason to believe that the hemlock trees posed a hazard, and a professional forester who had inspected the stump of the fallen tree had found that the tree was free of defects. The mere possibility of harm does not mean the probability of harm.

– Tom Root

TNLBGray