Case of the Day – Thursday, April 16, 2026

Posted on April 16, 2026 by TLRoot tagged.

YOU’LL GET NOTHING AND LIKE IT

We’ve all had it happen to us. Our next-door neighbor gets drunk and rams his bulldozer into our best shade tree, gouging it up pretty badly. Then we have to sue, and while the torn-up grass he left behind and shrubs he rolled over get paid for, we get nothing for the tree. All because he wounded it but didn’t kill it.

What? You say it hasn’t happened to you? OK, but it did happen to Mike and Melissa in Huron County, Ohio. When neighbor Bob Tite got a little tight and rammed their tree, the trial court told them they’d get nothing for the wounded walnut, because it’s not dead. Dead trees we can figure the cost of, but a wounded tree… Well, it may die sooner instead of later, but who can say? The trial court said the damage is “speculative.”

Speculative? If Mike or Melissa had been rammed by the tight Mr. Tite, they would have been able to collect for their injuries without having to die first. And trees are people, too, right? Well, maybe not, but a tree probably shouldn’t have to die before a property owner can get compensation for damage to it.

Tinney v. Tite, 2012-Ohio-2347 (Ct.App. Huron Co. 2012). One summer day, Mike and Melissa Tinney heard a loud noise outside of their house. When they looked out through the window, they saw their across-the-road neighbor, Bob Tite – quite inebriated at the time – sitting on his bulldozer lodged hard up against a sizeable black walnut tree in their back yard. Deep ruts across their lawn and two smaller trees splintered on the ground marked the path the bulldozer had taken.

The Tinneys sued Bob for the damage. Their certified arborist expert said the damage to the walnut covered 25 to 30 percent of the tree’s circumference. He testified that the extent of the damage “ruined” the tree because, although it would not kill the tree immediately, it would result in “a slow decaying process” that would eventually compromise the structural integrity of the tree and cause it to become a hazard. The arborist was unsurprised that the tree was still producing leaves one year after the incident. He said the wound was starting to develop a callus as healing progressed, but the tree would weaken over time because the wound would not heal completely before decay set in. He could not say that the tree would die from the wound, but he said that the tree’s structural integrity is likely to become a dangerous factor in the future.

The Tinneys also called a witness who had a degree in landscape horticulture. He said the severity of the damage would probably stress the tree out and eventually the old walnut would die. He testified that as the years progressed, the Tinneys could expect more decay and more branches showing signs of decline. He said the tree’s decline and potential death was “not an immediate thing. It’s going to take some time” because “it’s a long process for this tree to decline.”

Bob’s sister testified in support of her brother, however, testifying that she saw the damaged black walnut the summer after the incident, and it looked “healthy, green, and alive” despite the wound on the trunk.

The Tinneys won a judgment of $3,410.00. The award covered the lawn and the saplings but included nothing for the wounded but still living walnut tree because the trial court found that giving them damages for the walnut tree’s injury would be “potentially temporary and speculative at best” since “its appearance remains the same.”

The Tinneys appealed.

Held: The Tinneys were entitled to damages for the injured walnut tree.

The Court observed that most decisions involving O.R.C. § 901.51 – the Buckeye State’s statute on wrongful cutting of trees – involve situations in which trees have been completely cut down, making it considerably easier to determine the full extent of the damage. In this case, the tree was still alive, though it was not guaranteed to remain so for decades to come. Nevertheless, the Court said, temporary damages to vegetation are recoverable, because it is a “fundamental rule of the law of damages is that the injured party shall be fully compensated.”

As a general rule, speculative damages are not recoverable. An award of damages must be shown with a reasonable degree of certainty and in some manner other than mere speculation, conjecture, or surmise. However, the Court ruled, if an appellant “establishes a right to damages, that right will not be denied because the damages cannot be calculated with mathematical certainty.” Even when permanent damages are awarded for trees that were cut down, temporary damages may still be awarded if the permanent damages alone do not fully compensate the plaintiff.

Both of the Tinneys’ experts testified it was reasonably certain that the tree was permanently damaged because it would not heal before decay set in. The Tinneys furnished precise calculations on the reasonable restoration value of the property. Therefore, the Court ruled, they had shown “with a reasonable degree of certainty what would be required to reasonably restore their property. The damages to the tree must have had some value, but the plaintiffs were awarded nothing, even if just a nominal amount for the temporary trespass onto their property.”

The Court of Appeals sent the case back to the trial court to calculate damages for the wounded walnut tree.

– Tom Root

Case of the Day – Wednesday, April 15, 2026

Posted on April 15, 2026 by TLRoot tagged.

TRIVIAL PURSUIT

Anyone who follows the law (or, for that matter, reads this blog) must from time to time read about a case that seems… well, just so trivial.

What can we say? Lawyers have to eat, too, and some of our brethren and sistren in the bar will take some ridiculous cases, just because the monied defendant will pay nuisance value to make the case go away.

Sometimes, hard to believe, a case is too trivial even for the court. In today’s case, we review one of three fact patterns from three separate apparently trivial cases that were wrapped into a single New York Court of Appeals decision (the Court of Appeals being New York’s highest court). If you’re a glutton for punishment, you can go right to the decision and read about the other two cases included in the decision, both of which involved falling on staircases. The fact pattern we’re focusing on is sufficient to provide an excellent illustration of the trivial defect doctrine.

As the Court puts it in the decision’s preface, “it is usually more difficult to define what is trivial than what is significant.” The trivial defect doctrine differs from the ancient legal maxim “de minimis non curat lex,” which – as my beloved high school Latin teacher, Emily Bernges, would have explained – translates as “the law does not concern itself with trifling matters.” Usually, “de minimis non curat lex” applies when the injury is insignificant, i.e., a hotel guest asked for a king-size bed and got a queen-size bed instead. The trivial defect doctrine, on the other hand, applies where the injury is quite real, as in victim-plaintiff Lennie Hutchinson’s trip and painful fall over a small protrusion in the sidewalk. No one doubted that Lennie was good and truly hurt. Instead, the question was whether the defect he tripped over was trivial. Thus, the “de minimis non curat lex” situation attends where the defect is real but the injury is trifling. The trivial defect doctrine applies when the obverse is the case.

Certainly, at first blush, it seems easy enough to dismiss Lennie Hutchinson’s complaint that he tripped over something a fraction of an inch wide and another fraction high. But as we’ll see, invoking the Trivial Defect Doctrine is not always easily done.

Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 19 N.Y.S.3d 802 (Ct.App. N.Y. 2015). Leonard Hutchinson was walking on a concrete sidewalk in the Bronx when his right foot “caught” on a metal object protruding from the sidewalk, and he fell, sustaining injuries. Hutchinson sued Sheridan Hill House Corp., the owner of a building abutting the site of Leonard’s fall. Under the New York City Administrative Code, Sheridan was responsible for maintaining the sidewalk in a reasonably safe condition.

Leonard described the metal object as being “screwed on in the concrete” and gave rough estimates of its dimensions. Sheridan’s attorney had the sidewalk inspected and found the object, cylindrical in shape, projected “between one eighth of an inch… and one quarter of an inch” above the sidewalk and was about five-eighths of an inch wide.

The trial court granted Sheridan summary judgment on the ground that it lacked notice of the defect. The appellate court affirmed, holding additionally that the metal object’s “minor height differential alone is insufficient to establish the existence of a dangerous or defective condition.”

Leonard took the case to New York State’s highest court, the Court of Appeals.

Held: The defect Leonard complained of was trivial as a matter of law and thus not actionable.

The Court said a defect alleged to have caused injury to a pedestrian may be trivial as a matter of law, but such a finding must be based on all the specific facts and circumstances of the case, not size alone. Indeed, a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it “unreasonably imperils the safety of” a pedestrian.

Liability does not turn on whether the hole or depression that causes a pedestrian to fall constitutes a trap. Many factors may render a physically small defect actionable, including a jagged edge, a rough, irregular surface, the presence of other defects in the vicinity, poor lighting or a location – such as a parking lot, premises entrance/exit, or heavily traveled walkway – where pedestrians are naturally distracted from looking down at their feet.

Liability from physically small defects is “actionable when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot,” the Court said. “Attention to the specific circumstances is always required.”

Finally, the Court said that under the trivial defect doctrine, a defendant seeking dismissal on the ground that the alleged defect is trivial must first show that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact.

Sheridan met its burden by producing measurements indicating the metal protrusion was only about a quarter inch high and 5/8ths inch wide, together with evidence of the surrounding circumstances. Hutchinson tried to show features of the defect that would magnify the hazard it presented, arguing it had a sharp edge, was irregular in shape, and was firmly embedded in the sidewalk, so that “it could snag a passerby’s shoe.” Hutchinson argued he should not be required to look at his feet while walking on the sidewalk.

The Court was unimpressed. It said the characteristics Hutchinson identified were common to sidewalks. Instead, the Court said, the “relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances.”

Here, the metal object protruding only slightly from the sidewalk was in a well-lit location in the middle of the walk at a place where a pedestrian “would not be obliged by crowds or physical surroundings to look only ahead.” The object stood was not hidden or covered in any way so as to make it difficult to see. Its edge was not jagged, and the surrounding surface was not uneven. Taking into account all the facts and circumstances presented, “including but not limited to the dimensions of the metal object,” the Court said, “we conclude that the defect was trivial as a matter of law.”

– Tom Root

Case of the Day – Tuesday, April 14, 2026

Posted on April 14, 2026 by TLRoot tagged.

LIGHTNING AND LIGHTNING BUGS

I was talking to my son in Texas (OK, texting, because he’s a 30-something, and texting instead of talking – sort of using the telegraph instead of the telephone – is what people under 40 do) about the standing water in the flat land that constitutes his extended back yard. It reminded me of Texas’s flat land that seems to this Midwesterner to go on forever – and that Texas is a place where a husband can shoot his wife’s lover, and the wife’s the one who gets charged.

That makes me a little gratified when what could have devolved into a gunfight ends up with the misbehaving defendants coming up on the short end of a jury verdict instead, and at the same time, a little pleased to bring you a Texas case.

This case — a perfect illustration of the problem we’ve talked about before with verbal contracts — shows the horrors that result when complex deals aren’t written down. Bachmeyer and the Stukeses made an oral deal: Bachmeyer could graze his herd on their land if he would spend his time and money fixing up their place. He did, to the tune of about $8,186.00, but clearly, some event must have intervened to sour the deal because the Stukeses refused to let Bachmeyer’s longhorns graze. “Be that way,” Bachmeyer may have replied, “but give me back the $8,186.00 I spent.” Strangely, they refused to even do that.

The other side in today’s hearing reminds us of the Stukeses, but that’s another story.

Bachmeyer sued, and the Stukeses obligingly counterclaimed, raising a host of complaints against him about trespass, shoddy fence-building, cutting down too many trees… the works. The trial thus turned into a regular furball, complicated further by the lack of a written agreement that would have settled a number of issues.

Things got even messier because it turned out the Stukeses didn’t do much better choosing lawyers than they did writing contracts. Their attorney let the trial court give a whacked-out jury instruction on the meaning of “trespass,” one which essentially required the jury to find that Bachmeyer intended or negligently trespassed, instead of merely intending the act that led to the trespass.

Mark Twain once observed that “[t]he difference between the almost right word and the right word is really a large matter — it’s the difference between lightning and a lightning bug.” And was he ever right! At law, one has trespassed if he or she intends or negligently enters onto the real property of another. That is, if you step off a public sidewalk onto my lawn in order to let a group of nuns pass, you have trespassed. You intended to take the step that you took and intended to end up on my grass. It matters not that you were being polite, or that it was for a good reason, or that the Pope would have wanted you to do so. It’s trespass.

If however, you remained on the sidewalk, but the nuns grabbed you and threw you bodily onto my lawn, you did not trespass – not that nuns would ever do such a thing.

The instruction the court gave led the jury to think that Bachmeyer had to intend that his incursion on the property was a trespass. If turned trespass into a “state of mind” offense that it has never been. The upshot of the wrong instruction — just the almost right words in almost right places — as well as the Stukeses’ lawyer being asleep at the switch, was a judgment against the defendants. The Stukeses were told to cover Bachmeyer’s $8,186.00 and, for good measure, to pay Bachmeyer’s legal fees in the amount of $17,500.00.

The Court of Appeals wasn’t terribly sympathetic… except on the fee award, which it sent back for reduction and recalculation. Speaking of fees, we bet that the Stukeses’ lawyer had some trouble collecting his.

Stukes v. Bachmeyer, 249 S.W.3d 461 (Tex.App., 2007). Bachmeyer and the Stukeses owned neighboring properties. They entered into an oral agreement to allow Bachmeyer to use the Stukeses’ property to graze cattle in exchange for Bachmeyer‘s agreement to replace the fence separating the two properties, to remove brush, and to otherwise improve the Stukeses’ property. The total value of Bachmeyer’s material and labor was $8,186.00.

When the Stukeses didn’t pay him, he sued. The Stukeses counterclaimed breach of contract, negligence, trespass, promissory estoppel, and a declaratory judgment. They claimed Bachmeyer failed to perform his services in a workmanlike manner because portions of the property had been flooded unnecessarily, requiring repairs to roadways and replanting of pasture; Bachmeyer removed trees that he wasn’t authorized to remove; Bachmeyer removed vegetation in a manner that left the property uneven and unsuitable for pasture; Bachmeyer failed to fertilize and to control weeds, or he did so in an improper manner; Bachmeyer installed fencing unevenly so that it encroached on the boundaries of the property; Bachmeyer damaged the Stukeses’ tractor; and Bachmeyer altered the natural terrain of the property in a manner that directed excess water runoff onto the Stukeses’ property.

The case was tried to a jury that found in Bachmeyer’s favor on all claims. The trial court entered a judgment ordering that the Stukeses take nothing by their counterclaims, that Bachmeyer recover actual damages from the Stukeses in the amount of $8,186.00 plus interest, and that Bachmeyer recover attorney’s fees in the amount of $17,500.00 for trial and $4,000.00 more if the Stukeses appealed.

The Stukeses promptly did appeal, claiming that the evidence was legally and factually insufficient to support the jury’s negative findings on trespass and negligence claims and that the evidence was legally insufficient to support the jury’s finding on Bachmeyer’s attorney’s fees.

Held: The verdict on trespass and negligence was upheld. It turned out that the trial court gave the jury a bad instruction on trespass. Trespass to real property occurs when a person enters another’s land without consent. To recover trespass damages, a plaintiff must prove that (1) it owns or has a lawful right to possess real property, (2) the defendant physically, intentionally and voluntarily entered the land, and (3) the defendant’s trespass caused damage.

But the trial court gave the jury a bum instruction. It told the jury that “[o]ne who intentionally trespasses upon land in possession of another is subject to liability whether or not the actor causes harm to the other. A trespass may also be committed through negligence.” The jury paid attention and found that Bachmeyer did not intentionally commit a trespass and that he did not negligently commit a trespass.

The problem was that negligence is not a required element of a trespass cause of action. What’s more, while a plaintiff has to prove that the defendant intentionally committed the act that constituted a trespass, the plaintiff doesn’t have to show that the defendant intended a trespass. If Bachmeyer had tripped on a tree root and fallen over the boundary, the act would not have been a trespass. But if he walked over the boundary — even if he didn’t know the boundary was there — he would be trespassing, because he intended the action, walking, that resulted in the invasion of the property. The jury charge, however, required the jury to find that Bachmeyer either intentionally or negligently committed a trespass.

The Stukeses did not object to these instructions. They were, therefore, required to show more than simple trespass, and the Court of Appeals was duty-bound to assume that the charge correctly stated the law. As for alleged overflow of water onto their land from Bachmeyer’s land, the Court ruled the Stukeses were heist by their own petard: they were unable to prove that Bachmeyer had negligently or intentionally trespassed with the water onto their land. As for the wandering fence, the Stukeses argued it encroached on their property in places. Bachmeyer testified he and the Stukeses had agreed on the encroachments. The Court held that the mere fact that the fence encroached on the Stukeses’ property was insufficient to establish that Bachmeyer intentionally or negligently trespassed. The jury was free to believe or disbelieve Bachmeyer’s testimony that the parties agreed to place the new fence as closely as possible to the old fence and that he did so. The Court deferred to the jury’s resolution of this credibility issue.

The Stukeses also argue that Bachmeyer trespassed by unnecessarily cutting down trees on their property. A landowner who intends to have timber cut on his property owes a duty to adjoining landowners to ascertain the property line of adjoining land with diligence and care. Here, the Court said, the Stukeses and Bachmeyer agreed that to replace the old fence, some of the trees would have to be removed. Bachmeyer testified that he told the Stukeses that he would have to remove some of the trees to put up a straight-line fence and that the Stukeses agreed to the tree removal. It is undisputed that Bachmeyer had the right to remove trees on the Stukeses’ property to construct the new fence. Whether he negligently or intentionally exceeded that right, the Court said, was inherently a fact question. The jury had factually and legally sufficient evidence to conclude that he did not.

– Tom Root

And Now The News …

Posted on April 14, 2026 by TLRoot tagged.

https://www.sfchronicle.com/eastbay/article/oakland-tree-cutting-fine-hearing-22205973.php
San Francisco, California, Chronicle, April 14, 2026: Oakland council balks at nearly $1M fine to property owner who cut down 38 trees on Claremont Ave.
What began as a City Council hearing on a nearly $1 million fine for a man who city arborists said cut down protected trees on his Claremont Avenue property escalated into a heated debate about whether Oakland’s leaders would enforce their own laws. It ended without a decision — and the council will take it up again next month. The Tuesday hearing centered around Matthew Bernard and Lynn Warner, who city arborists say chopped down 38 mature trees without permits in 2021 and 2022 across their land, an adjacent city property and on neighbors’ lots. One arborist called it “the most egregious illegal tree removal case” in decades. Bernard, who was born in Nigeria and immigrated to the United States in 2001, said he and Warner wanted to build a future home for their family on the Oakland hills lot, and did “everything in their willpower” to respect the city’s laws. He said that he had acted on advice of an arborist to remove trees at risk of falling, or igniting during a wildfire. Bernard’s neighbors have also sued him over the trees that he cut on their property. The Oakland City Council was split — with some aligning with environmental advocates who felt the city needed to show it would not allow trees to be removed without consequences, and other council members expressing sympathy for a couple trying to navigate city permitting…
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https://www.bbc.com/news/articles/cgld6zn0192o
London, UK, BBC, April 13, 2026: Why are trees dying beside a major road and how can it be fixed?
National Highways is to trial a new way of planting trees alongside roads after admitting its “performance on tree planting has not been good enough”. Many thousands of trees have died since it planted 860,000 saplings between Cambridge and the A1, after completing the A14 upgrade in 2020. A further 165,000 trees and shrubs were planted between 2022 and 2023, and people nearby even took to planting their own trees along part of the road’s embankments. So what goes wrong after trees are planted – and can it be fixed?
National Highways
For decades, the A14 in Cambridgeshire was synonymous with slow-moving traffic, jack-knifed lorries and very long delays. That changed with the completion of a £1.5bn road improvement scheme, a 12-mile (19km) Cambridge to Huntingdon three-lane carriageway. About 270 hectares (670 acres) of habitat, including 40 native tree and shrub species, was planted as part of the project. In part, this was to mitigate for the removal of the many existing mature trees in the path of the re-routed road. “Trees are the soft estate along the highways and have multiple functions, including as a visual screen to hide it from surrounding landscape,” said Neil Davies, the chairman of the board of trustees at the Arboricultural Association, a charity which promotes awareness of tree care. “It can provide environmental screening, for noise for example, and it has a habitat and landscape value, including linking up with established habitats…”
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https://www.theguardian.com/world/2026/apr/14/wildfire-cattle-ranchers-american-great-plains
London, UK, Guardian, April 14, 2026: ‘Nothing but tree skeletons’: record-breaking wildfires devastate US cattle country
In a normal year, the vast grasslands that roll across the American Great Plains would be starting to green. But at the center of the US, where most of the nation’s beef producers graze their herds, this spring brought fire instead of moisture, leaving more than a million acres black and barren. Multiple blazes raged across Nebraska, where the records for the annual acreage burned were obliterated in a single month. The state logged the largest blaze ever recorded when the Morrill fire cascaded across more than 642,000 acres (260,000 hectares) before it was contained in March. Fire is not a stranger to this region early in the year, when precipitation is low, grasses are dry and dormant, and strong winds howl through the open flats. While other parts of the American west face their biggest fire threats in summer and fall, grasslands are more primed to burn in the spring. In recent years, however, the risks have sharply risen, along with the size and impact of bigger blazes. “There is a changing wildfire dynamic in this region,” Dr Dirac Twidwell, a rangeland ecologist at the University of Nebraska, said, describing how a cycle of extreme conditions can create more catastrophes. Stronger summer storms seed the grasses that cure by winter. If there’s no protective snow cover, that browned vegetation ramps up fire risks – especially when the winds begin to blow…
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https://www.newyorker.com/news/the-lede/the-forest-service-a-force-across-rural-america-reorganizes-under-trump?_sp=78ffd842-4cf2-45ad-9662-ecebe67d08af.1776104189755
New York City, The New Yorker, April 7, 2026: The Forest Service “Reorganizes” Under Trump
On a recent morning in central Vermont, where I live, it was raining, and the wood frogs had just begun to chorus. The sap run from the maple trees has started to dwindle as the branches begin to bud out. There is a timeless quality to a New England spring (or as timeless as anything can be in an age of rapid climate change), and part of that timelessness is the United States Forest Service, whose land boundaries I wander across most days on rambles through the woods. For more than a century, the Forest Service has been a fairly stable fact of life across vast swaths of the American landscape. Which is why last week, though in the big cities it was barely noticed amid the noisy horror of the war in the Middle East, there was much talk in rural America about the Trump Administration’s sweeping changes to—really, a gutting of—the Service, which operates under the purview of the Department of Agriculture. The Service’s regional headquarters will vanish, along with most of its research facilities and experimental forests—and also quite likely the sense of mission that has animated the agency for more than a century. The Forest Service controls a hundred and fifty-four national forests and twenty national grasslands—at a hundred and ninety-three million acres, that’s the second-largest land base, public or private, in the country, trailing only the Bureau of Land Management, which runs the nation’s federal rangelands. Sometimes the national forests are confused with the (much smaller) national-park system, which is understandable—often those parks butt up against the forests, and the uniforms of the two services look a little alike, and that’s before we’ve even considered the Fish and Wildlife Service. But, if you see people driving a minty-green pickup, they’re from the Forest Service, a job that implies a very particular history.The agency’s antecedents date to the nineteenth century, but it was at the beginning of the twentieth, under President Theodore Roosevelt, that it came into its own. Its first chief was Gifford Pinchot, a close friend of Roosevelt’s, who believed in protecting the country’s natural resources to help power its growth—he wanted there to be plenty of trees for the industrial needs of the country. “Unless we practice conservation, those who come after us will have to pay the price of misery, degradation, and failure for the progress and prosperity of our day,” he said. In his time, however, Pinchot’s biggest confrontation was with the forces of what might be called “preservation,” saving forests not for their industrial potential but for their intrinsic meaning and beauty…
Boston, Massachusetts, WGBH-TV, April 13, 2026: Invasive insects, disease now kill more trees in the Northeast than logging, study finds

More trees are dying in Northeastern forests, and not just from old age. A new study authored by researchers at the University of Vermont finds disease and invasive insects spurred on by climate change are increasingly changing the character of the region’s woods. “It’s definitely worrisome,” said Lucas Harris, a postdoctoral researcher at the Rubenstein School who was the lead author on the study. “It’s not just that scattered trees are dying here and there in stands.” The researchers used the federal Forest Inventory and Analysis database to compare more than 300,000 records of tree death across 18 states from 2009 to 2024. At the start of that period, logging was the leading cause of tree death in the Northeast. But during that time, losses from natural causes increased by nearly 40%…

Econews, April 12, 2026: Africa is surprising the whole world with a phenomenon no one expected: trees are reappearing without anyone having planted them

When people picture African landscapes, they often imagine dust, drought, and thinning vegetation. But in central Tanzania, farmers are seeing something that feels almost backwards in the best way. Trees are coming back in places where they were cut down decades ago, and no one is planting new seedlings. The surprise is not magic. It’s management. Instead of starting from zero, communities are working with an “underground forest” of living roots and stumps that never fully died, using a method called Farmer Managed Natural Regeneration (FMNR), known locally as “Kisiki Hai.” A cut tree can look finished, especially in drylands where the ground bakes hard and plants struggle. But in many fields, the stump’s root system is still alive, sending up small shoots that resemble weak shrubs. FMNR works by selecting the strongest shoots and pruning the rest so the plant’s stored energy is focused on fewer stems. Farmers also protect those shoots from grazing animals, which is often the difference between “it tried” and “it returned…”

Traverse City, Michigan, WPBN-TV, April 13, 2026: Tunnel of Trees route disrupted as culvert failure closes part of M-119

A culvert failure has washed out part of M-119 in Emmet County overnight, closing a stretch of the highway — including part of the scenic “Tunnel of Trees” route — as crews assess the damage and drivers are detoured around the area. Tunnel of Trees is a roughly 20-mile stretch between Harbor Springs and Cross Village, famous for its tree canopy and Lake Michigan views. According to the Michigan Department of Transportation, the washout happened south of Division Road, between Good Hart and Cross Village. Tunnel of Trees is open between Stutsmanville and Island View Roads through Good Hart. MDOT crews are evaluating the damage and working to develop a repair plan, though no timeline has been set for reopening. Drivers are being detoured using Island View Road and North State Road in coordination with the Emmet County Road Commission…

New York City, The City, April 11, 2026: They Speak for the Trees: Meet the ‘Petal Protectors’ Guarding NYC’s Cherry Blossoms

As cherry blossoms bloom in the beginning of April, the idyllic promenades of Roosevelt Island transform into catwalks. Visitors travel to the tiny island to capture the fleeting beauty of the flowering trees overlooking the Manhattan skyline — and their own portraits, for Instagram. Crowds wearing their best outfits flash wide smiles under the pink and white blooms there to view and be seen with the more than 100 cherry blossom trees that bring a brief flurry of activity to the typically quiet island. But amidst the fervor for the best pictures, some visitors turn the trees into props. “They like to snap the flower off the tree, or I’ve actually seen someone take a branch off,” said Jennifer Engstler, who has lived on the island for 23 years. “I’ve seen people crawl on the trees like kids, or they hang from them. It just — it drives me crazy…”

Portland, Oregon, The Oregonian, April 10, 2026: $29 million lawsuit over 14-year-old Portland boy killed by tree settles

The mother of a 14-year-old Portland boy who died in 2021 after a massive branch fell on him during a windy and rain-soaked tree planting event has settled the $29 million lawsuit that she filed against her son’s school and the nonprofit that organized the event. The case had been scheduled to go to trial next week in Multnomah County Circuit Court. But court papers state that Central Catholic High School in Southeast Portland and the nonprofit tree-planting organization Friends of Trees have paid over $1.2 million in attorneys’ fees to Pickett Dummigan Weingart LLP, the law firm representing the teen’s mother. It’s unclear, however, how much settlement money went to the mother of Christopher Robert Declan Kelly. Attorneys stated in court papers that the amount she received shall remain confidential. However, the attorneys’ fees might offer some indication. As an industry standard, lawyers who settle cases typically receive one-third of settlements — meaning a $3.6 million settlement might result in attorneys receiving $1.2 million of that in fees, with the remaining $2.4 million going to their client…

PBS, April 11, 2026, Drought threatens myrrh tree key to luxury perfumes and African incomes

The critical note in some of the world’s most well-known perfumes is myrrh, a tree resin from the Horn of Africa that is under pressure from what experts say has been a historic drought. Threatened by the lack of water and nibbled by starving livestock, the trees that once formed a dense forest in the Somali region of Ethiopia are in danger, locals say. Earlier this year, researchers supported by the American Herbal Products Association, a trade group, and Born Global, a nonprofit, visited a source of the prized resin that makes its way to global markets from some of the most vulnerable places on earth. Their goal was to ensure that those who harvest the resin get more of the direct profits instead of middlemen along the opaque supply chain. Ethiopia is a major source of myrrh, which has been used in beauty, health and religious practices since at least ancient Egypt. Traditional harvesting in the region has not changed, which helps to protect the trees and produces the highest quality resin…

Trenton, New Jersey, WKXW-FM, April 12, 2026: NJ just banned a tree I’ve hated my whole life — and I’m fine with it

My friend Gerry lives in Pennsylvania and every spring, without fail, he posts the same message. Cut them down. Get them out of your yard. The best way to prune a Bradford pear tree, he says, is with a single horizontal cut through the trunk as close to the ground as possible. I laughed when I read it this year. Then I thought about last weekend. I was on a bike trip along the JAM trail in Delaware — beautiful ride, runs near a landfill. At one point I caught a smell and figured, well, that’s the landfill doing what landfills do. I kept riding. The smell stayed with me longer than it should have. A few miles later I looked up and saw them. White flowering trees, lining the trail in both directions. Bradford pears in full bloom…

Phoenix, Arizona, KTVK-TV, April 12, 2026: Worker dies after palm tree skirt falls on him in Tempe

A worker is dead after a palm tree skirt fell on him in Tempe on Sunday morning. Just after 8:30 a.m., first responders were called for a tree rescue in the area of Maple Avenue and 12th Street, just east of Mill Avenue, according to the Tempe Fire Department. Crews say 57-year-old Flavio Sesmas Maya was climbing and trimming a palm tree when its skirt dislodged and fell on him, crushing him against the tree trunk. Firefighters used a ladder truck to reach Sesmas Maya and remove the debris. Tempe Fire’s technical rescue team then helped with lowering him out of the tree and onto the ground. However, Sesmas Maya was pronounced dead at the scene. A palm tree skirt is a collection of dead fronds and debris that builds up over time and can weigh hundreds of pounds, easily trapping and killing someone…

Columbus, Ohio, Dispatch, April 8, 2026: Ohio fights invasive spotted lanternfly with $65,000 worth of grants

It’s spring, and soon you may see invasive spotted lanternflies fluttering around Ohio. The Ohio Department of Agriculture wants to slow their spread. ODA placed every Ohio county under spotted lanternfly quarantine in February 2026 and is no longer asking Ohioans to report sightings. Still, the department has launched a grant program rewarding seven organizations for their efforts to reduce the spread of the invasive spotted lanternfly and its host, the invasive tree of heaven. Here’s where the organizations are and more about the spotted lanternfly. ODA to reward over $65,000 to seven organizations to combat spotted lanternflies, tree of heaven… Altogether ODA will distribute $65,193 to help fight against spotted lanternflies. Projects to reduce the spread of these species may include community engagement activities to help control the spread, removal of trees of heaven, herbicide treatments to prevent regrowth, targeted insecticide treatments for the spotted lanternfly and identification and removal of egg masses…

Las Vegas, Nevada, The Nevada Independent, April 8, 2026: The war on grass is killing our trees

When the Southern Nevada Water Authority’s turf conversion program started in 1999, I was on board with the idea. I was a true believer, an environmentalist and conservationist who’d proudly served for many years as lead groundskeeper at its partner agency, the Las Vegas Valley Water District. The rationale behind the Water Smart Landscapes rebate program was valid: There was simply too much grass that served little to no purpose in Southern Nevada. Much of it was irrigated inefficiently, especially on highly sloped surfaces that caused a huge amount of runoff and water waste. I strongly believed then — and still do now — that a desert landscape is far more beautiful than a boring lawn. The water authority’s cash-for-grass incentive started off paying people 50 cents per square foot of grass removed from their yards. It later increased to $1, and it’s risen to roughly $7 per square foot today. (For its part, the water district contributes to the incentives by discouraging lawns through excessive use charges — without necessarily considering factors such as property size, number of residents or existing vegetation, but that’s another subject.) But perhaps the biggest incentive will come into play when a wide ban on irrigating “nonfunctional turf” from our taps, AB356, takes effect in 2027. In the water authority’s war on grass, this could be the decisive battle. (Disclosure: I gave a sworn declaration in an active lawsuit challenging the water authority’s enforcement of this ban, but I am not a plaintiff.) If only it were that simple. There’s a problem with this all-grass-is-bad thinking: It doesn’t consider our trees, which in many cases are dependent on grass…

Earth.com, April 8, 2026: Fungus that rots trees from the inside out may be hiding a climate problem

A new study has found that a common tree disease can turn some dry northern forests from methane sinks into methane sources. The finding suggests that damage hidden inside living trunks may be quietly changing how much warming a forest helps prevent. In sugar maples growing across the Wisconsin-Michigan northwoods, the strongest methane signal came from trees decaying at the center. At the University of Notre Dame Environmental Research Center (UNDERC), researchers documented that methane levels rose as that internal decay worsened. Healthy neighboring trees still released small amounts, but diseased trunks released far more, enough to overwhelm the modest methane uptake in nearby soil…

Washington, DC, WTOP Radio, April 8, 2026: Stumpy returns: How a hollowed out cherry tree is surviving through clones

They are the sons of stumpy, or, better yet, clones of stumpy, and they are growing right now in D.C., readying to be replanted at the Tidal Basin. The progeny of the gnarled yet beloved cherry tree, which was removed from the Tidal Basin during sea wall restoration, are now growing at the National Arboretum. “The National Park Service reached out to the National Arboretum and asked if we could help them propagate Stumpy so that Stumpy’s spirit would live on, and, as you can see, that was successful,” Piper Zettel, horticulturist at the National Arboretum told WTOP, as she pointed to the three small Yoshino cherry trees that have grown to be about three feet tall. The National Arboretum is a public garden, but it’s also serves as a gene bank and a research facility for the U.S. Department of Agriculture’s Agricultural Research Service. They house plant genetic material from all over the world as a safeguard…

Columbus, Ohio WBNS-TV, April 6, 2026: ‘I’m trapped in the middle’: East Columbus homeowner caught in tree dispute

Ella Moody has lived in her east Columbus home for 16 years. But recently, she’s found herself navigating a new problem. “The neighbor’s tree, it didn’t die. It didn’t fall. It laid open like a flower, a trunk laid open,” she said. But unlike a flower in bloom, the result has been anything but beautiful.”It has collided with the power line coming across the alley through my yard to service that empty house,” she said. The house next door is currently vacant. Moody told 10 Investigates she doesn’t know who owns it. She added that she’s called code enforcement for help, but claims she was told the city couldn’t intervene. So, she said she called AEP. “AEP won’t move the line. They’re telling me I need to cut these limbs so they can tighten the line. I’m saying tighten the line. How about run it in another direction? They said they need the owner’s permission…

Pittsburgh, Pennsylvania, Tribune April 6, 2026: Volunteers replace 10 invasive trees with native ones along Freeport Road in Blawnox

Blawnox is looking a little greener with the help of multiple volunteers and the Western Pennsylvania Conservancy. The nonprofit environmental agency partnered with the borough for a tree planting through TreeVitalize on April 2. TreeVitalize is a community tree planting program. It’s a joint project of Allegheny County Parks, the city of Pittsburgh, Tree Pittsburgh, the state Department of Conservation and Natural Resources, and the Western Pennsylvania Conservancy. Since 2008, TreeVitalize has planted more than 40,000 trees in 59 municipalities in Allegheny County and nearly every Pittsburgh neighborhood. About 20 people, including many Blawnox residents, and Western Pennsylvania Conservancy members replaced 10 invasive trees with native ones along Freeport Road. Both the ones to be removed and types to be planted were selected by Brian Crooks, the conservancy’s urban forestry manager. He also helped provide supplies such as gloves, safety vests and shovels for volunteers. The borough provided food and refreshments. “Our goal is to make sure the right tree goes into the right space,” Crooks said April 2. Trees planted included two cherry trees, two oak hybrids and six lilacs…

New York City, The New York Times, April 6, 2026: A Crucial Weapon in Russia’s Spring Offensive: Leafy Trees

As spring takes hold, Russia is back on the offensive in Ukraine. Moscow’s forces are trying to exploit the warmer weather to regain the momentum they lost over the winter as Ukraine waged successful counterattacks along a crucial section of the front. Russia has an edge in soldiers and matériel, and it will look to put those advantages to use by leveraging a critical springtime asset: foliage that helps conceal advancing troops from the omnipresent drones that hunt and strike almost anything that moves. The days when troops pushed forward in tanks and other armored vehicles are largely over. Most attacks today are carried out on foot, with soldiers moving in small groups to reduce detection. Forested areas are scarce in Ukraine’s east and south, the main theater of the war. As a result, soldiers often move through the tree lines that border agricultural fields. These lines are a legacy of Soviet-era policies that used trees to shield crops from wind. Now, they are used by troops to seek cover from enemy fire or regroup before an attack. They have also become pathways for troops trying to gain territory or to retreat from the front line…

Better Homes & Gardens, April 4, 2026: Can You Trim a Neighbor’s Tree That Hangs Over Your Yard? What a Lawyer Says

Joe Zdrilich, lead attorney at Zdrilich Injury Law, says that, in his state of Georgia, it is legal to trim a neighbor’s tree when the branches or roots extend onto your property. “You have a right to protect and keep up your property, just as your neighbor has the right to preserve their tree. Both are involved in private-property rights that are enshrined in the Constitution,” explains Zdrilich. As far as what parts of the tree you can legally cut, Zrilich says it should be kept strictly to what’s on your side of the property line. He advises remaining conservative with your trimming, as anything that weakens the tree or threatens future disease could present a liability, regardless of whose side of the property line the cut was made from. “Cutting into the base of the trunk, weakening the tree, or stepping onto a neighbor’s land without permission can present liability,” Zrilich adds. “I’ve dealt with disputes in which the pruning was too aggressive, and the neighbor went on to contend that shade had been lost, aesthetics destroyed, and damage done structurally to a tree. If a tree is injured, the potential monetary liability can be high as the law deems trees valuable property…”

Case of the Day – Monday, April 13, 2026

Posted on April 13, 2026 by TLRoot tagged.

THE BORING BUT CONSEQUENTIAL WORLD OF CIVIL PROCEDURE

The Croneys of Bigelow, Arkansas, bought a place on Taylor Loop Road, and — apparently being NIMBY enthusiasts — immediately sued the city to keep it from making their residential road any bigger or better. The court told them they had to name all the other landowners as parties to the suit. They did not, and the court threw the case out.

That was back in 1998, and the Croneys thereafter probably got busy with Y2K or the dot-com bubble or maybe just going to see There’s Something About Mary. Whatever the reason, they didn’t pursue it. But when the City started to bury new utilities under the road in 2005, the Croneys sued again.

This time, the City complained that the suit was barred by res judicita, a doctrine that prevents parties from litigating the same issues over and over, sort of a “one bite of apple” doctrine. After all, the City complained, the Croneys tried this lawsuit once before and got thrown out. What’s more, when the Croneys added some neighbors to the suit, the neighbors were dismissed as defendants and the Croneys were told to pay their legal fees. The trial court agreed.

The Court of Appeals reversed and remanded the case. It concluded that when your case gets thrown out for failure to join necessary parties, you’ve not had a fair chance to litigate the issue. The heart of res judicata is that the plaintiff gets one bite of the apple before the apple’s taken away. Here, the apple was snatched away before the Croneys got their first chomp.

Also, the Court of Appeals was a bit miffed that the trial court said the Croneys’ claims against the few neighbors they did include as defendants to the suit were meritless. The trial court could hardly complain on one hand that the Croneys had no claims against the neighbors and complain on the other that the neighbors were necessary to be included as defendants in the case.

This may seem to be a dry-as-toast civil procedure issue, but on such technicalities, serious neighbor law issues may founder.

Croney v. Lane, 99 Ark.App. 346, 260 S.W.3d 316 (Ark.App., 2007). In 1998, the Croneys bought property on Taylor Loop Road. They sued to enjoin the City of Bigelow and Perry County from improving Taylor Loop Road. The trial court ordered them to clearly specify the relief sought and to join in the lawsuit “all landowners that may use the subject road to access their property.” They didn’t, so the trial court dismissed their complaint.

In July 2004, the Croneys again sued to quiet title to their property, subject to a public easement by prescription across Taylor Loop Road, and to enjoin the City from installing utility lines under the roadway. In response, the City argued that the Croneys’ lawsuit was barred by the doctrine of res judicata.

The Croneys amended their petition to allege that neighbor Buddy Lane destroyed their trees and was continuing to trespass on their property and to allege that other neighbors, the Hootens, owned the land. The trial focused primarily on the width of Taylor Loop Road and the uses to which the City has made of it, but there was also testimony regarding the lack of records in the clerk’s office indicating how the road has been used, about the ever-increasing width of the road, and about the City’s placement of culverts and water lines under the road. At the close of the testimony, both defendant Lane and the Hootens moved for directed verdicts. The motions were granted.

The court entered an order dismissing Croneys’ complaint for failing to join all of the landowners on Taylor Loop Road, and because the action was barred by res judicata because appellants had previously filed suit against the City on the same issues and the previous suit had been dismissed with prejudice. Finally, the court declared Taylor Loop Road a public road.

Croneys appealed, arguing the trial court erred in summarily dismissing their complaint on the basis of res judicata, that the City had no right to bury utilities under, or to widen, Taylor Loop Road, that the Croneys were entitled to a decree describing the City’s easement with specificity, and that the trial court erred in dismissing Croneys’ petition to quiet title.

Held: The trial court’s decision was reversed, and the case was remanded. The Court said that the purpose of the res judicata doctrine is to put an end to litigation by preventing the re-litigation of a matter when a party has had one fair trial on the matter. The test to determine whether res judicata applies is whether matters raised in a subsequent action were necessarily within the issues of the former suit and might have been litigated there.

The key question is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Here, the Court said, the Croneys did not have a full and fair opportunity to litigate their case, because it was involuntarily dismissed pursuant to the rules of civil procedure for failure to add necessary parties and to clearly specify the relief sought. The fact that the trial court specified that the dismissal was “with prejudice” didn’t matter because the trial court had had the option to dismiss without prejudice, and when the rules preclude declaring a case to be dismissed with prejudice, the doctrine of res judicata should not apply.

The Croneys liked their street the way it was …

The Court of Appeals said that dismissal of the case for failure to join indispensable parties was improper because nothing in the record showed that the nonjoined property owners could not be joined to the lawsuit. As a predicate to dismissing a case pursuant for nonjoinder, a trial court must determine that the indispensable, nonjoined parties cannot be made parties to the litigation. Consequently, before dismissing the appellants’ case, the trial court was required to determine that the nonjoined parties who relied on Taylor Loop Road to access their properties were not amenable to process. Here, the Court said, nothing in the record indicated that these other parties could not be joined.

The trial court had dismissed Lane and the Hootens as defendants because the Croneys presented no evidence establishing that Lane had destroyed their trees or was continuing to trespass on their property. The trial court awarded Lane and the Hootens fees after concluding that the actions against them were “totally lacking a justiciable issue of law or fact, as permitted by Ark.Code.Ann. §16-22-309(a)(1). This offended the Court of Appeals, which complained that the trial court erred, on one hand, in finding that Croneys were required to join all of the adjacent property owners in the suit while, on the other hand, finding that their claim against the only adjacent property owners who had been added was lacking merit.

Although the arguments made against the Hootens were weak, the Court said, the Hootens were nonetheless indispensable parties whom appellants were required to join for a complete adjudication of the road issues. Consequently, the trial court erred in awarding attorney’s fees to the Hootens. As for Lane, he was not an indispensable party, and Croneys presented no evidence establishing the merit of their claims against him. The trial court was permitted to assess fees against the Croneys for Mr. Lane.

– Tom Root

Case of the Day – Friday, April 10, 2026

Posted on April 10, 2026 by TLRoot tagged.

DOING NOTHING IS NOT AN OPTION

Among our favorite meaningless aphorisms is the admonition that “doing nothing is not an option.”

Who are these guys kidding? Doing nothing is always an option, which helps explain why so many people do it so often and so well. We admit that sometimes doing nothing brings unpleasant results. But a lousy outcome does not mean that doing nothing is not an option. It only means that it may not be a wise option.

In a lot of legal decisions, you can sense some of the undercurrents at work behind the law that’s being applied, like you’re getting a glimpse of the litigants’ B-roll. In today’s case, you have the good guy defendants – Ev and Marie Walsh, who happily occupy their snug little home – and then there’s the ogre plaintiff, the absentee owner of the rental house next door.

How do we know this? First, when landlord Ed Scannavino noticed his retaining wall starting to tilt and break apart, he didn’t stop by at the Walshes’ for a pleasant chat. Instead, he sent the neighbors a letter complaining that their trees were knocking down his wall. The nice-guy neighbors ignore the impersonal slight that the letter represents and hire contractors to professionally trim their trees along the wall.

The trimming did not help because the problem was encroaching roots. So a few months later, Ed ramps it up with a certified letter, so the Walshes would have to sign for it. How often have you ever gotten a certified letter containing good news? In the letter, Ed complains again, but this time he adds that if the Walshes try to fix the problem he had demanded they fix – like the dutiful neighbors they are – they had better not let their contractors step on his land unless they first prove they have insurance and permits.

This time, the Walshes detected Ed’s condescension, or at least sensed the futility of trying to make this guy happy. In response to the certified letter, they did nothing. Which, it turns out, was as good an option as anything.

Face it – absentee landlord Ed was spoiling for a fight right from his first letter. How did that work out for Ed? Well, as the Good Book says, sow the wind, reap the whirlwind. Ed got a fight all right, and when the smoke cleared, Ed’s retaining wall lay in small chunks in his yard.

Ed had to rebuild the wall, and he had to pay for it. Donald Trump could be inspired by such an outcome.

Scannavino v. Walsh, 445 N.J.Super. 162, 136 A.3d 948 (N.J.Super.A.D. 2016). Ev and Marie Walsh had a house next to \one owned by Ed Scannavino. Ed was a landlord, with a tenant occupying his parcel. The Walsh family moved into their home in 2004.

The properties were separated by a cinder-block retaining wall, about 4 feet high and 100 feet long. Sometime after the Walshes moved in, a mulberry tree and some shrubs began growing on their property near the retaining wall. No one knew how the tree got there, and the trial court held it was a natural occurrence.

Once the tree and shrubs began growing, Marie or her son trimmed the trees every year, but never trimmed any of the roots below ground level. No evidence was presented that trimming trees above ground affected root growth.

Ed said he first noticed damage to the retaining wall in January 2012, and he asserted roots from the mulberry tree and shrubs caused the retaining wall to tilt. He sent a letter to Marie expressing concern about the damage. She hired some guys to trim the trees and bushes near the retaining wall. But 10 months later, Ed sent Marie a second letter, this one by certified mail, complaining again that “the trees on your property have caused excessive damage to my retaining wall.” In a spirit of accommodation, Ed also warned Marie not to have any workers she hired enter his property to remove the trees without first supplying him with proof of insurance and permits. Marie did not respond.

Nine months later, Ed sued the Walshes, alleging that their careless, negligent, and grossly negligent maintenance of their property caused damage to the retaining wall. He demanded $12,750 in damages.

At trial, the Walshes argued that improper installation, or “simple wear, tear, and deterioration,” could have caused the damage to the retaining wall. Marie also asserted that when she and her husband moved onto the property, the retaining wall was already tilting and had some cinder blocks missing.

The trial court found that the trees near the wall were a “naturally occurring condition and therefore defendants cannot be held liable for the condition of the wall.”

Ed appealed.

Held: The mulberry and shrubs were not a nuisance, and the Walshes were thus not liable. The Court noted that the Restatement (Second) of Torts held that “neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.” A natural condition of the land includes the natural growth of trees, weeds, and other vegetation upon land not artificially made receptive to them.

Thus, the Court said, “we have recognized that the Restatement (Second) of Torts ‘draws a distinction between nuisances resulting from artificial and natural conditions of land. The former are actionable; the latter are not’.” But here, Ed was claiming that Marie and Ev were liable “not because of the natural process of the growth of the tree roots. Instead, it is the positive act — the affirmative act — of the property owner in the actual planting of the tree which instigated the process.”

The Court disagreed. “The fact that the affirmative act is helped along by a natural process does not thereby make the condition a natural one within the meaning of the traditional rule.” Here, the trial court found the tree roots that grew and allegedly damaged the retaining wall were a natural condition. It is true, the Court said, that the Restatement (Second) of Torts may permit liability for damage caused by a tree not planted by the possessor of land where the possessor has “preserved” the tree. However, the preservation envisioned by the comment “means some sort of affirmative action on the part of the defendant and not its failure to act.” There was no evidence that Marie took affirmative action to preserve the trees or engaged in any “nurturing” like fertilizing, or in any other maintenance “designed to keep the trees alive or growing.” Rather, she and her son simply trimmed the trees.

The Court rejected the notion that it needed to explore whether evidence of trimming or pruning that improves the health or growth of a tree would be sufficient to convert a “natural” tree into an “artificial condition.” Ed had not introduced any evidence that Marie’s trimming had improved the tree’s health or accelerated root growth, and the trial court had found nothing else in the record that suggested that “Marie or her agent caused the damage to the wall.” Even Ed admitted on appeal that he was not suggesting that Marie’s trimming back the trees had increased root growth.

Instead, Ed argued that the mere fact she had trimmed the trees made her responsible for whatever damage the tree caused. The Court rejected this, pointing out that “the rule of non-liability for natural conditions of land is premised on the fact that it is unfair to impose liability upon a property owner for hazardous conditions of his land which he did nothing to bring about just because he happens to live there.” Because Marie’s trimming did not bring about root growth, she could not be blamed for the damage to the retaining wall. Besides, the Court said, Ed’s proposed rule of liability would “lead to the anomaly of imposing liability upon one who cuts back wild growth ‘while precluding liability of an adjacent landowner who allows the natural condition of his property to run wild’.”

The Court wanted to be sure it did not send the signal that doing nothing was an option.

– Tom Root

Case of the Day – Wednesday, April 8, 2026

Posted on April 8, 2026 by TLRoot tagged.

WORKERS’ COMP TRUMPS CREATIVITY

Whenever an accident results in permanent disability, it is understandable that the injured party and his family look for as many deep pockets as they can find.

A million bucks sounds like a lot of money (unless you’re Congress), at least until you deduct a third for the lawyers, and spend the rest on a lifetime of care and support for a paraplegic. The facts of today’s case are rather prosaic: workers from a landscaping service were trimming a tree. Something may have slipped — or maybe it was just one of those things — but a tree limb fell and struck José Garza, who was on the ladder, knocking him off and causing spinal cord injury.

Missouri workers’ comp awarded José $1 million. But he nevertheless sued his employer and the other workers who present that day, alleging negligence. The Missouri trial court quickly threw out the claim against the employer — after all, this kind of litigation was just what workers’ comp was supposed to avoid. But the Court struggled with the claims against his jobsite supervisor and two fellow landscapers.

The move was creative. After all, José argued, the statute just protected the employer from liability, not anyone else who happened to be there (like co-workers, who – face it – can sometimes be dim bulbs). Why shouldn’t other employees, especially supervisors, be liable for negligence?

The Court of Appeals said, “No way, José.” In order to take the co-workers outside the protection of the statute, José would have to show that they had engaged in some sort of purposeful, affirmatively dangerous conduct, much more than the garden-variety negligence he alleged had occurred that day. To rule otherwise would completely undermine the policies underlying workers’ comp, and at the same time make it just about impossible to recruit and afford to keep employees (who would demand insurance coverage as a condition of employment).

Thus, the courts never reached the question of whether anyone had been negligent that day, because even if everything José alleged was true, it would just not be enough.

Garza v. Valley Crest Landscape Maintenance, Inc., 224 S.W.3d 61 (Ct.App.Mo. 2007). José Garza worked for Valley Crest Landscape Maintenance, Inc., as a landscaper. One day, he was told to report to a home to provide landscaping services. Brad Mason, a supervisor, directed which trees to trim. Garza’s crew leader, Rafael Moya, instructed Garza to climb a ladder and cut a specified limb. Moya placed the ladder against the tree, held the ladder, and rigged ropes to the limb to be cut. Javier González held the rope that Moya had rigged, while Garza climbed the ladder. While Garza was on the ladder, the limb knocked him to the ground, causing a permanent spinal cord injury.

Garza filed a workers’ compensation claim and collected over $1 million. He then filed a complaint in state court against Valley Crest, Mason, Moya and González, alleging negligence. The defendants moved to dismiss for lack of subject matter jurisdiction, claiming that workers’ compensation was the sole remedy available to Garza.

The trial court agreed. Garza appealed.

Held: The dismissals were affirmed. Normally, workers’ compensation is intended to be a worker’s only remedy for injuries on the job, even where those injuries are the result of the negligence of the employer. Generally, co-employees enjoy the same protection under the exclusive remedy provision of the workers’ compensation statute as the employer, absent a showing of something more. That “something more” is determined on a case-by-case basis and includes any affirmative act, taken while the supervisor is acting outside the scope of the employer’s duty to provide a reasonably safe environment, that breaches a personal duty of care the supervisor owes to a fellow employee.

Allegations by Garza against his co-workers that they failed to securely hold a ladder, failed to properly rig ropes to the branch being cut, failed to create a proper support with the rope, and failed to use reasonable care in holding the rope did not amount to the intentional and dangerous conduct required to make the co-workers separately liable beyond the coverage afforded Jose by the workers’ comp statute.

The Court held that mere allegations of negligence are “not the kind of purposeful, affirmatively dangerous conduct that Missouri courts have recognized as moving a fellow employee outside the protection of the Workers’ Compensation Law’s exclusive remedy provisions.

– Tom Root