Case of the Day – Thursday, June 4, 2026

Posted on June 4, 2026 by TLRoot tagged.

THOSE OLDIES BUT GOODIES

Back a century ago or so, when the car was new-fangled, the airplane only read about in magazines, and no one had any broadband, simpler tree questions than our usual fare were being asked. And answered.

Here’s a sample tree question from those days: I have an apple tree growing close to our mutual property boundary. Some of the branches overhang your land, and every year, beautiful ripe apples fall on your side of the property line as well as on mine. Whose apples are they?

If you read yesterday’s case, you would say, “Why they’re mine, because I own the soil, the air branches above and the roots below,” remembering well the doctrine of cujus est solum ejus est usque ad coelum et ad inferos. And you would be…

Wrong.

At common law, the fruit belongs to the owner of the soil on which the tree is growing and not to him on whose soil the fruit happens to fall.

Now let’s make the issue more complex. Mr. X owns the timber rights to Blackacre (the name of the mythical piece of land that is the centerpiece of every first-year law school property law question). Ms. Y, however, holds title to Blackacre, subject only to Mr. X’s right to cut down the trees.

Now it turns out that the Blackacre trees are quite fecund, shedding copious amounts of valuable chestnuts. Ms. Y plans to make chestnut stuffing at Thanksgiving. Mr. X, however, says the nuts are his, because they came from the trees to which he has the rights to the trees. He intends to roast the chestnuts over an open fire at Christmas.

‘Aw, nuts!’ you say. ‘You fooled me about the apples. I’m not even going to try to guess. I have no idea.’

Neither did Roscoe Vincent and S.R. Haycraft, protagonist and antagonist in today’s 104-year old antique case from Kentucky.

The court sorted it out for the boys. It’s answer? ‘It depends.’

We love those kinds of answers.

Vincent v. Haycraft, 66 S.W. 613 (Ky.App. 1914). Gillis Vincent conveyed 35 acres of woodland to S. R. Haycraft, reserving to “all timber upon the land herein conveyed with the free and unobstructed right to cut and remove same for the final period of seven years from this date.” Shortly after the sale, Gillis sold the timber rights to Roscoe Vincent. A year later, Roscoe bought the acreage from S.R. Haycraft.

But S.R. reserved possession of the acreage for a year, agreeing to give occupancy of the tract to Roscoe on New Year’s Day 1913. The timber on the land consisted principally of beech trees, and in the fall before S.R. gave up possession, the trees produced a bumper crop of mast.

Mast is the fruit of the beech tree, found in small burrs that drop from the tree in autumn. They are small, roughly triangular and edible, with a bitter, astringent, or in some cases, mild and nut-like taste. They have a high enough fat content that they can be pressed for edible oil. At the time, mast was chiefly valuable as a food for hogs. The beech mast ripened and fell on the ground in the months of October and November.

The issue was whether the mast belonged to Roscoe Vincent, who had acquired title to both the timber and the land, or S.R. Haycraft, who had retained the use and possession of the land until January 1, 1913? The court below held that the mast belonged to Haycraft. Roscoe Vincent appealed.

Held: The mast belonged to S.R. Haycraft.

Roscoe argued that S.R. never acquired any title to the timber. Therefore, when he sold the land to Roscoe, he could only reserve the use and possession of the land that he had previously owned. Roscoe argued that the reservation of the timber carried with it the reservation of the fruit of the timber. Having no title to the timber, he said, S.R. could in no way acquire title to the fruit of the timber. He compared the situation to that of a fruit tree overhanging the premises of another, in which event it is generally held that the fruit belongs to the owner of the soil on which the tree is growing and not to him on whose soil the fruit happens to fall.

The Court agreed that S.R.’s purpose was to reserve until the following January 1st whatever estate he had in the land by virtue of his original deed, and it acknowledged that mast is as much the “fruit of the beech tree as the acorn is of the oak, the chestnut of the chestnut tree, or the walnut of the walnut tree.” But it is not like the fruit of a fruit tree.

In the case of fruit falling onto adjoining property, the Court said, the neighboring landowner on whose soil the fruit falls has no interest in the adjoining land of which the tree is a part, and thus, no right to the fruit. Nor is it like the sale of an orchard with the reservation of possession of certain of the trees. “The sole purpose of reserving an orchard or certain fruit trees,” the Court held, “would be to reserve the fruit, for fruit trees are valuable for the fruit alone.”

Here, the case depends on the parties’ intention. The primary purpose of the reservation was the timber itself, and not the incidental fruits of the timber.

Generally, the Court ruled, a sale or reservation of timber to be cut and removed within a specified time is a sale or reservation of only so much as may be cut and removed within that time. Therefore, the removal of the timber within the time specified is an element necessary to the completion of the title. Here, Gillis and, later, Roscoe had the right at any time before the expiration of their timber reservation to cut and remove as much timber as they could. While S.R. reserved the use and possession of the land after sale to Roscoe, Roscoe retained the right to go upon the land and cut and remove the timber, as well as any constituent part of the timber.

Roscoe retained the right to the mast, in other words, as long as it was hanging on the tree. When, however, the mast became ripe and fell on the ground, it was no longer a part of the timber, and the right to cut and remove the timber did not carry with it the independent right to go on the premises and carry away the fallen mast.

Thus, S.R.’s retention of the use and possession of the land until the following January 1st gave him the right to collect the ripened mast that had fallen on the ground during the months of October and November.

– Thomas L. Root

And Now The News …

Posted on June 4, 2026 by TLRoot tagged.

Knoxville, Tennessee, WATE-TV, June 3, 2026: I-75 noise ‘unbearable’ for Knoxville neighborhood after tree removal

Dozens of people who live in North Knoxville want a noise-abatement wall put up alongside their condo community, which lies a couple of hundred feet off I-75. Ever since trees and shrubs were removed last year, residents say the rumble of trucks, cars, and engine braking has become “unbearable.” From Lee Williams’ back porch, he has a direct view of I-75. However, it didn’t look like this when he moved in three years ago. His subdivision, Alpine Meadow, is just south of the Emory Road exit in North Knoxville. Where there is now a flat terrain, a thick grove of dense trees and shrubs was cut down last year. They once served as a natural sound barrier for homeowners who are closest to the road. Since the removal of trees and shrubs, highway noise levels have risen sharply. “It has just gotten louder, a lot louder,” said Williams. “At first, I could at least go outside. We could have conversations on our back deck. Now I can’t, we can’t do any of that. I just go outside, I cook, I grill out, and I just come right back inside….”

Norwich, Vermont, Valley News, June 2, 2026: Invasive beetle prompts removal of nearly 400 ash trees in Norwich

Nearly 400 trees along the “fastest and busiest” town roads are slated to be cut down over the next four months. The 394 trees along Beaver Meadow, Elm, Hopson, New Boston, Turnpike and Union Village roads make up just under 4% of the more than 10,000 ash trees along Norwich’s roadways, Doug Hardy, a member of Norwich’s Emerald Ash Borer Management Group, said last week. The collection consists of the “most dangerous” ash trees along well-traveled Norwich roads and “virtually everything” marked to be cut down already is infested with the invasive emerald ash borer. The $106,000 removal project began Monday. “We felt that the safest thing to do in the best interest of the community was to cut any ash tree which could fall into the road,” Hardy said…

Colchester, Vermont, Vermont Public, June 3, 2026: Scientists are injecting elm trees with a killer fungus to save them

Walking down into the floodplain at the Nature Conservancy’s preserve in Benson is like walking into a sea of American elm saplings. The trees criss-cross about 30 acres on the valley floor in tight rows. “American elm is a foundation tree species in floodplain forests,” says Leila Wilson, an ecologist with the U.S. Forest Service. “These are systems which are facing severe threats from non-native pests and pathogens, but we also know from other impacts, right? Land use change, conversion to agriculture, now climate change, and changing precipitation and temperature patterns. So these are systems that are in peril.” Wilson knows these trees well. Each one comes from a seed she harvested from a tree whose flowers she isolated with little plastic bags, then hand-fertilized using pollen collected in the lab. That pollen came from big old elms scattered across the Northeast…

Jackson, Mississippi, WLBT-TV, June 3, 2026: A neighbor’s cracked tree leans toward a house, here’s what the homeowner did when the owner wouldn’t remove it

Dead and dying trees from a neighboring property threatening homes is a problem many face. How do you handle the tree owner not taking responsibility? One Ridgeland property owner had to get the city involved to remove the hazard. A more than 50-foot dead tree hovers dangerously over the Ridgeland home. It is on the property of the neighbor. The property owner said they are getting no help with having it removed. “It’s already cracked at the bottom and it could fall any time,” said Bankeni Monzilli Tillman. Since January, Tillman has worried as the dead pine rests on branches of an oak tree over her house on Lincolnshire Boulevard. The tree is on Carol Thompson’s property. Tillman said Thompson hasn’t responded to requests to remove it. Thompson declined to comment about the dead tree. Tillman reached out to the City of Ridgeland and said it’s been four months of no action. “The tree’s probably gonna fall, and I just continue to pray and just ask God to keep it up until this is resolved,” said Tillman, “And we cannot go and cut the tree because it’s on her property, and that’s gonna be a trespassing problem…”

Fargo, North Dakota, AgWeek, June 1, 2026: Is the removal of trees to blame for relentless winds and blowing dirt?

It’s been nearly a century since dust filled the skies and spread across the country during the Dust Bowl. During the peak of fieldwork this spring across Minnesota and North Dakota, it may have felt as if history was repeating itself. As thousands of acres were tilled and planted, dry weather was exacerbated by howling winds day after day. It brought the National Weather Service in North Dakota to issue High Wind warnings, Dust Storm warnings and a Blowing Dust Advisory. The Minnesota Pollution Control Agency issued warnings about air quality. Matthew Olson, a forest stewardship manager in Lisbon, North Dakota, said the winds came at a horrible time as those fields were being opened up and were most susceptible to soil loss. In one of the social media posts put out by the National Weather Service in Bismarck, a commenter responded that the reason for the “micro-Dust Bowl” activity was that farmers are removing windbreaks to make room for more farmland. Others called that claim false, even saying that there are now more windbreaks than before…

St. Paul, Minnesota, myVillager, June 1, 2026: Proposed tree preservation ordinance is laid over once again

By the time it is finally adopted, Saint Paul’s long-delayed tree preservation ordinance could resemble a mighty oak. The Saint Paul City Council on May 20 laid over the proposed ordinance for another public hearing. The ordinance, which has been on the drawing boards for more than a year, continues to be amended. The community-led Tree Preservation Ordinance Public Input Group has continued to make recommendations. So has a group of staff from the city’s departments of Public Works and Parks and Recreation. According to City Council president Rebecca Noecker, city officials intend to have the ordinance and related rules ready for approval by late June. However, she added, the tree preservation measures need to be implemented correctly. Saint Paul’s tree canopy has been decimated in recent years by the emerald ash borer. Tree diseases and weather extremes, including severe storms, have also taken a toll. Many of the city’s low-income neighborhoods also contain relatively few trees along city boulevards and parks, raising concerns about equity and urban heat islands…

Kansas City, Missouri, KMBC-TV, May 29, 2026: Northland homeowner calls for cleanup after tree trimming debris left behind

A Northland homeowner contacted KMBC 9 Investigates after a tree removal company working for Evergy left a pile of limbs and debris in her yard, leading to confusion over cleanup responsibilities. Evergy has agreed to remove the debris after hearing about Michelle Crawford’s concerns on Friday. “My neighbors have said, ‘Hey, what are you doing over there? Maybe we ought to have a bonfire,'” Crawford said. She explained that a crew of seven or eight workers brought the debris out from a tree line near power lines behind her home last month. It followed work in December on the same area. Crawford has tried contacting Evergy and the tree trimmers to address the mess but has not received clear answers on next steps. “I feel lost,” she said. “You know, I’ve called, called, called, and I haven’t gotten the answer we need because it’s still sitting here…”

New Orleans, Louisiana, WDSU-TV, June 1, 2026: New Orleans-area arborists provide tips for preparing trees for hurricane season

Tree-lined streets in areas like Esplanade Avenue, Magazine Street, Old Metairie, and the Northshore are admired for their beauty and shade, but they can become hazardous during hurricanes, causing property damage and power outages. David Benton, vice president of Bayou Tree Services, encouraged homeowners to act before hurricane season begins. “The best thing you can do is call prior to hurricane season starting, get on the list, and then that way you can make an informed decision and not make an impulsive decision on something that may be drastic as to remove a large mature tree in your yard,” Benton said. Experienced arborists can identify issues that may not be visible to the average person. “We look at the trees, and when we assess, what we’re looking for is obviously, you know, broken, dead limbs,” said Jessie Mudge, lead arborist at NOLA Tree Solutions. “Not so obviously, we look for a lot of signs of the tree moss or mushrooms growing up the base of the tree, different things like that give us an idea as to the health of the tree…”

Winnipeg, Manitoba, CBC, May 30, 2026: Wildfires are destroying trees faster than we are replacing them

Marley Moose is spending her third summer planting trees in northern Manitoba as part of a crew trying to help Mother Nature regenerate forests destroyed by wildfires. But that goal has become more challenging with the cancellation of a federal program that aimed to plant two billion trees by 2030. “Everywhere around me is burnt, but it’s where life used to be, so we’re back here giving life back to these dead areas,” said Moose, 22, efficiently digging a hole and slipping tiny jack pine and black spruce trees into the ground. In 2016, this forest in Manitoba’s Interlake region, about 300 kilometres northwest of Winnipeg, was devastated by a jack pine budworm infestation. It was starting to regenerate when wildfire ravaged the Devils Lake area in 2021. Areas just north are already burning this spring…

London, UK, BBC Wildlife, May 31, 2026: “It’s like being electrocuted and set on fire at the same time…” Discover one of the world’s most dangerous trees

The gympie-gympie tree (Dendrocnide moroides) – also known as the stinging tree – is primarily found in Australian rainforests and certainly doesn’t look all that threatening at first glance. It stands at a maximum of 10 metres tall, and its melodic name comes from a language of the indigenous Gubbi Gubbi people of south-eastern Queensland. You don’t want to get too close to this tree – its stem, leaves, and fruit are all covered in fine hairs that, when touched, inject toxin into the skin, causing severe stinging that can last for days, weeks or even longer. Among the first to document the painful effects of the gympie-gympie tree was road surveyor A.C. Macmillan, writing in a letter in 1866 that his horse “was stung, got mad, and died within two hours…”

Case of the Day – Wednesday, June 3, 2026

Posted on June 3, 2026 by TLRoot tagged.

WE OWN IT ALL

Over the years, these august blogs have pretty much settled the question of a landowner’s right to trim his or her neighbor’s trees to the property line – the Massachusetts Rule – whether the trimming is above the ground (branches) or below the ground (the roots). But what if the trimming kills the tree or – as in today’s case – makes it fall down?

The answer can be found in the ancient Latin maxim “cujus est solum ejus est usque ad coelum et ad inferos.” I recognize that every time I trot out any Latin, I fondly recall Mrs. Emily Bernges, my sainted Latin teacher from high school days (and those days were many days ago). I recall her again today because not only was she a crackerjack instructor and a gifted disciplinarian (in an all-male school with only two female teachers, she could calcitrare asinus when juvenile male asinus needed calcitraring), but she was able to instill in my young hormone-soaked teenage brain a love for writings of Marcus Tullius Cicero and Gaius Julius Caesar that remains with me several years later (try “57” as a good approximation).

So what would Emily tell us about today’s case? She would ring the hotel desk bell she kept next to her jar of pencils, say, “Class, attention!” and then explain that cujus est solum ejus est usque ad coelum et ad inferos translates as “to whomsoever the soil belongs, he owns also to the sky and to the depths.” We would protest that such can hardly be the state of legal affairs because that would mean that every satellite transiting the sky would be committing countless trespasses as it crossed the continent.

It is true, Emily would tell us (it seemed to me she knew everything, so her being versed in some medieval common law would hardly have surprised me), that the cujus est solum doctrine – a relic of the Middle Ages – has been somewhat abrogated by aviation. The Supreme Court severely curtailed the “to the sky” part of the rule during World War II, ruling in United States v. Causby that the amount of sky a landowner owned was paltry. However, the part of the cujus est solum doctrine addressing ownership of the depths is still pretty good law.

In today’s case, the excavation at the neighboring cancer center (a place that, unfortunately, is near and dear to my heart) pretty clearly caused the neighbor’s oak to fall, because a major part of the tree’s root system – that had grown onto cancer center property – was severed. The Alabama Supreme Court held that in excavating one’s property, a landowner should not negligently cut the roots of a neighbor’s tree. However, the Court said, as long as the cutting was non-negligent, if the neighbor’s tree fell as a result, well, cujus est solum ejus est usque ad coelum et ad inferos to you, unlucky neighbor.

That “negligent” versus “non-negligent” severing part of the ruling is puzzling. I’m not sure of the difference between negligent and non-negligent cutting, or, for that matter, whether there even is a difference. If you own ad inferos (and the Court says you do own to the depths), and remove any roots you find while excavating your inferos, that appears to be your right… no matter whether you sever them with a backhoe, hire hungry beavers or even detonate a small nuclear device. It is the fact the roots were severed that caused the tree to fall, not how the roots were severed.

Harding v. Bethesda Regional Cancer Treatment Center, 551 So.2d 299 (Supreme Court, Alabama, 1989): Bethesda Regional Cancer Treatment Center hired general contractor GBB to build a concrete containment facility for a radiotherapy linear accelerator, part of Bethesda’s cancer treatment facility. The concrete containment facility was located along the property line separating BRCT land from the rear of the Hardings’ property.

A few weeks after GBB completed the excavation needed for site preparation, a large tree located on the Hardings’ property fell during a windstorm, damaging their home. The Hardings claimed trespass, contending that the excavation work had been conducted across their property line. They also sued in negligence, claiming that the root system of their tree was cut and the tree undermined during the excavation on Bethesda Regional’s property.

The trial court entered summary judgment in favor of BRCT and GBB. The Hardings appealed.

Held: BRCT and the contractor, GBB, were not liable to the Hardings.

Intrusion upon land without the consent of the possessor is an essential element of trespass quare clausum fregit. BRCT and GBB offered affidavits of the excavators that at no time did they encroach on the Hardings’ property, as designated by boundary line markers. The Court held that the affidavits shifted the burden to the Hardings to produce some evidence of encroachment. Dr. Harding’s affidavit averred that the “excavation and digging was done on what appeared to me to be my property… Mr. Lynn [a surveyor] advised me that in fact excavation work had been performed on my property.” But that affidavit was hearsay and speculation, the Court said, not admissible evidence.

The Court held that BRCT and GBB showed that the excavation work was done in a skillful, prudent, and workmanlike manner. Under Alabama law, a landowner has a right to excavate on his own property for a lawful purpose, close to the boundary line, as long as he does not endanger the lateral support of the adjoining property. The Hardings made no claim involving lateral support, but instead only complained that their tree roots, which intruded onto the BRCT property, were cut.

An adjoining landowner has a right to remove limbs that hang over his property. Given that right (enshrined in the Massachusetts Rule), the Court said, “An analogy can certainly be made regarding a property owner’s right to remove roots extending onto his property. This is especially true in light of the landowner’s right to excavate on his own land. To deny such a right would create an oppressive restriction on the use of one’s own land.”

The doctrine of cujus est solum ejus est usque ad coelum et ad inferos (“to whomsoever the soil belongs, he owns also to the sky and to the depths”) may have been qualified insofar as air flight and oil and gas law is concerned, the Court observed, but “it still extends to air space that can be occupied by limbs of trees, and, we hold today, to the depths that can be occupied by roots of trees.”

The owner of property has no duty to refrain from the non-negligent cutting roots of a tree that intrude upon his property. Here, the Court found that a civil engineer and land surveyor indicated in his affidavit that the survey of the lot showed “the location of a large hardwood tree which evidently blew over in a recent wind storm. The tree was on the property line and had been excavated underneath for construction of the adjoining parking lot… [O]ur opinion is that the wind blew the tree over because its root system had been cut and exposed.” An agricultural extension agent said in his affidavit that the “excavation [that cut the roots] made this tree highly susceptible to wind damage.” While these affidavits provided evidence that the tree roots had been cut and that the tree became more susceptible to wind damage because of the exposed root system, the Court said, they did not set forth any facts to establish negligent excavation.

– Tom Root

Case of the Day – Tuesday, June 2, 2026

Posted on June 2, 2026 by TLRoot tagged.

TRIP, STUMBLE AND FALL

Mrs. Taubenfeld should have listened to the Mamas and Papas… they predicted that this might happen to her. It seems Mrs. T was walking past a Starbucks when she stepped into one of those tree wells cut into the sidewalk. She fell over an exposed tree root and hit the ground. She immediately hobbled off to her lawyer’s office. A lawsuit against Starbucks and the strip mall owner soon followed.

She argued that the lease between the strip mall owner and Starbucks required the mall owner to maintain the sidewalk. The Court disagreed, saying that the lease didn’t matter because a contract between parties could not create a duty to the public where one didn’t otherwise exist.

Tree well – is it a threat or simply a menace?

And no such duty existed here. A village ordinance required that property owners and lessees keep their sidewalks clear of obstructions, but that law didn’t create a right for a private person to sue. If Starbucks had failed to keep up the sidewalk, it might have to answer to the city government, but not to Mrs. Taubenfeld.

Statutes commonly make people or entities liable to the government (in the form of fines or penalties) for noncompliance. Usually, where the obligation is to clear natural problems, such as snowfall, high grass or exposed tree roots – conditions which the owner did not create – the statutes do not give the general public the right to sue for damages arising from noncompliance.

Taubenfeld v. Starbucks Corp., 48 A.D.3d 310, 851 N.Y.S.2d 512 (N.Y.A.D. 1 Dept., Feb. 21, 2008). Florence Taubenfeld fell over a tree root. The root was growing in a tree well cut into a public sidewalk in front of some premises owned by Park Plaza and leased to Starbucks. Faster than you can say sugar-free hazelnut latte made with nonfat milk, Mrs. Taubenfeld sued, claiming negligence. The trial court granted Park Plaza’s motion for summary judgment but denied Starbucks’ motion. Starbucks appealed.

Held: Starbucks prevailed, and the suit was dismissed. While the lease between Park Plaza and Starbucks required Park Place to maintain the sidewalk and landscaping, even assuming that the tree well into which Taubenfeld tripped and fell is part of the sidewalk or landscape, the lease could not create a duty to the public that did not otherwise exist. The Court held that neither Park Plaza nor Starbucks owed a duty to the public to repair the protruding root. Neither entity created the root, caused it to exist by reason of some special use of the sidewalk or tree well, or were obligated to maintain the sidewalk or tree well under some statute or ordinance.

In this case, the lease imposed on Starbucks no more than a duty to maintain those portions of the sidewalk that the coffee shop made special use of, for the purpose of providing outdoor seating for its customers. As to the remainder of the sidewalk beyond Starbucks’ outdoor seating, Park Plaza’s duty was limited by a Larchmont Village ordinance that required property owners to keep the sidewalk in front of their premises in good repair and in a safe condition for public use. That ordinance, however, did not specifically create tort liability.

While Starbucks made special use of a portion of the sidewalk by placing two tables with two chairs each, that special use did not extend beyond the tables and chairs to the tree well where Taubenfeld fell, or to the people on the crowded sidewalk. Some of those people were walking, and others were standing around the Starbucks tables chatting. Taubenfeld complained that she had had to walk around them, diverting her path into the tree well. Even if this were true, it would not have made either Starbucks or Park Plaza liable to her.

– Tom Root

Case of the Day – Monday, June 1, 2026

Posted on June 1, 2026 by TLRoot tagged.

PLEASE RELEASE ME

It’s not what you know, it’s who you know… That’s what the people looking for a break are saying about the Trump Administration these days. On day one of his second term, Trump issued a blanket pardon for people with January 6-related convictions and charges, accounting for the vast majority of his pardons. Last October, the president pardoned billionaire Changpeng Zhao, who has business connections with the Trump family. In November, Trump preemptively pardoned political allies Rudy Giuliani, Mark Meadows, and Sidney Powell, among others, none of whom was currently facing federal criminal charges.

Now, the President is reportedly considering a mass pardon of 250 people in honor of the nation’s 250th birthday.

This might be a good time to talk about releases… not the Presidential kind, but rather the kinds of prospective releases or liability waivers that are a part of our lives, from amusement parks and ski resorts to pools to dry cleaners to parking lots and hat checks. We get little tickets that have fine print on the back stating that by using whatever service we’re using, we agree that we can’t hold the vendor liable if anything goes wrong. Our fedora’s missing from the hatcheck? Too bad. Our pants have a hole burned in them from being pressed? Maybe we can cut them off and make shorts. The roller coaster collapses and crushes us to death? Sorry, pal, guess this just ain’t your day, and tomorrow doesn’t look very good, either.

Certainly, such releases serve an important purpose, being crucial grease on the cogs of commerce. You can find websites that let you “roll your own” liability waiver form for whatever event you have planned with just a few clicks. But the proliferation of such releases has left us wondering. First, are all these liability waivers enforceable? Second, can we use prospective waivers in the arboriculture industry — such as “by hiring me to trim your tree, you release me of liability if I make it fall on your Yugo” — to absolve ourselves from liability?

A California court grappled with such a release when a developmentally disabled child drowned at a city-run camp for such children. The girl’s mother had signed a release from liability – parents sign those forms all the time, and whoever reads them? – but the trial court and the court of appeals held that the release would not release the City from liability for gross negligence. The Supreme Court of California agreed, holding that an agreement to release future liability for negligence in recreational activities could not, as a matter of law, release the City or the employee from liability for gross negligence.

The case includes a detailed review of the history of such releases and a rationale for determining which types of releases are enforceable and which are not. Generally, a prospective release may not relieve a grantee of any obligation to meet even a rudimentary standard of care. If Santa Barbara had drafted its release to relieve it of liability for simple negligence, the release would probably have been valid. But it wrote it too broadly, to release it from any negligence, even gross negligence or recklessness. That was too much for the Court.

Big pigs get slaughtered ... The takeaway - write your release to be reasonable, or a court may ignore all of it.

Big pigs get slaughtered… The takeaway – write your release to be reasonable, or a court may ignore it.

In other words, little piggies go back to the trough, but big piggies get slaughtered.

City of Santa Barbara v. Superior Court, 62 Cal.Rptr.3d 527, 41 Cal.4th 747, 161 P.3d 1095 (S.Ct.Cal., 2007). The City of Santa Barbara provided extensive summer recreational facilities and activities for children, including a camp for children with developmental disabilities called Adventure Camp. Katie Janeway, who suffered from cerebral palsy and epilepsy, participated in the camp. Swimming activities were held on two of five camp days each week in a City swimming pool.

The application form for Adventure Camp included a release of all claims against the City and its employees from liability, including liability based upon negligence, arising from camp activities.

Katie’s mother signed the release in 2002, as she had in prior years. She also told the City about Katie’s disabilities, specifically that the girl was prone to seizures in the water, and that Katie needed supervision while swimming. The City knew the child had suffered such seizures in the past, and camp administrators took special precautions during the Adventure Camp swimming activities in 2002, assigning a special, trained counselor to keep Katie under close observation during the camp’s swimming sessions.

Pants came back from the cleaners with a hole? read the fine print on your claim ticket. There's probably a waiver there.

Pants came back from the cleaners with a hole? Read the fine print on your claim ticket. There’s probably a waiver in there somewhere.

Katie participated in the first day of swimming at the 2002 Adventure Camp without incident. On the second swimming day, she drowned. About an hour before drowning, Katie had suffered a mild seizure that lasted a few seconds. Her counselor observed the seizure and sent another counselor to report the incident to a supervisor. The supervisor said that the report was never received. Katie’s counselor watched her for 45 minutes following the mild seizure, and then — receiving no word from her supervisor — let Katie go ahead with swimming. Malong concluded that the seizure had run its course and that it was safe for Katie to swim. As Katie dove into the water for the second time that day, the counselor momentarily turned her attention away from Katie. When she looked back no more than 15 seconds later, Katie had disappeared. After the counselor and others looked for Katie for between two and five minutes, an air horn blew and the pool was evacuated. Lifeguards pulled Katie from the bottom of the pool, and she died the next day.

Katie’s parents filed a wrongful death action alleging the accident was caused by the negligence of the City. Relying upon the release, the City moved unsuccessfully for summary judgment. Failing in this, the City appealed, and the appellate court denied the petition, holding the agreement was effective and enforceable insofar as it concerned liability for future ordinary negligence but concluding that a release of liability for future gross negligence is generally unenforceable. Thus, the release form did not validly release any liability.

The Supreme Court granted review.

Held: The City’s release was invalid to the extent it purported to apply to future gross negligence. The Court observed that “ordinary negligence,” an unintentional tort, consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. “Gross negligence,” on the other hand, is a want of even scant care or an extreme departure from the ordinary standard of conduct. A signed release absolving the City and its employees from liability for “any negligent act” in its operation of a recreational program for disabled children violated public policy and was thus unenforceable, to the extent it purported to release liability for future gross negligence. Therefore, the Janeways were not precluded from pursuing a wrongful death action.

Sure you can impose your waiver in the fine print … but it’s not just boilerplate. Use care in drafting it, or – better yet – spend a little money to have a lawyer do it for you. Some things are too important for D-I-Y.

The Court said that public policy generally precludes enforcement of agreements that would remove the obligation to adhere to even a minimal standard of care. Courts may, in appropriate circumstances, void contracts on the basis of public policy, the determination of which resides first with the people as expressed in the California Constitution and second with the state legislature. The power of the courts to declare a contract void for contravening sound public policy is a very delicate and ill-defined power and should be exercised only in cases free from doubt. Nevertheless, the Court said, courts are authorized to distinguish ordinary negligence from gross negligence, even absent express legislative authorization.

The Court grudgingly seemed to accept that waivers of liability for future ordinary negligence – at least in recreational or sports contexts – would be enforceable. However, California does not permit a waiver of liability for future aggravated negligence. For that matter, neither do an overwhelming number of other states.

Whether this holding might have applicability before recreational and sports activities, such as in “inherently dangerous” activities like tree removal, is up in the air. While this shouldn’t dissuade an arborist or tree removal company from including a carefully drawn, limited waiver in the contract, the professional should not bank on the waiver being enforced.

– Tom Root

Case of the Day – Friday, May 29, 2026

Posted on May 29, 2026 by TLRoot tagged.

ARTIFICIAL DISTINCTIONS

When a tragedy occurs, it’s all too common to look for someone to pay for it. In today’s case, a young man was left a quadriplegic when a healthy-looking tree standing alongside a public highway fell without warning and struck his car. The trial judge was obviously moved by the sad story and felt it was his duty to open the state’s wallet.

The trial judge denied the Louisiana Department of Transportation and Development a free pass. The judge recognized that a prior holding relieved the state from the duty to inspect all sides of a tree. But he reasoned that the rule had been adopted in a case where a construction crew’s negligence had weakened the tree on the side away from the road. The trial court here reasoned that this case was different: it was natural rot, and natural rot did require DOTD to inspect all sides of a tree.

Truly a distinction without a difference! Step back and consider the implications of this holding. Besides the fact that why the tree was weakened is really not relevant to the danger it poses, the trial court’s ruling would mandate incredibly costly and time-consuming inspections. A state — even Louisiana — has a lot of highways to inspect. In Louisiana’s case, it amounts to nearly 17,000 miles of road, and lots of trees. The costs to the taxpayers of a tree-by-tree inspection would be staggering.

A perfect illustration of a distinction without a difference …

The Court of Appeals made short work of the trial judge’s higher “duty.” It held that the law was clear. Where the tree appears healthy — like the one that fell on the victim — the state’s duty could be discharged in a drive-by inspection… no matter why the tree was rotten.

Walker v. State Dept. of Transp. and Development, 976 So.2d 806 (La.App. 2 Cir., 2008). Nathaniel Walker was a passenger in a vehicle being driven by Dannie Evans on Louisiana Highway 71, when a large oak tree fell on the car. Nathaniel was left a quadriplegic, albeit one with a good lawyer. He sued Dannie, Allstate Insurance and the State of Louisiana Department of Transportation and Development.

Among other things, Walker alleged that the oak tree that fell on the vehicle was on the highway right-of-way in violation of highway safety regulations, that DOTD had prior knowledge that the tree needed to be removed, and that DOTD failed to inspect the right-of-way. DOTD moved for summary judgment, arguing that Nathaniel couldn’t show any facts in support of his allegation that DOTD had prior knowledge that the tree needed to be removed. DOTD supported this claim with an affidavit from one of its maintenance superintendents who had inspected the area in question two weeks before the mishap. The state agency argued that, under the law, it owed no duty to motorists traveling on state highways to check for damage on all sides of trees abutting state roadways. The trial court denied summary judgment to DOTD because the damage to the tree was a result of natural rot as opposed to third-party-operated construction equipment. The trial court stated that despite the holding in a prior case – Caskey v. Merrick Const. Co. – the distinction as to how the tree was injured imposed a greater duty to inspect on DOTD.

DOTD appealed.

Held: DOTD won, and Walker’s case was dismissed. The appellate court said in order to recover damages from DOTD, Walker had to prove that the state had ownership or control of the tree that caused the damage; the tree was defective (that is, it created an unreasonable risk of harm); the state had actual or constructive knowledge of the defect and failed to take remedial procedures within a reasonable amount of time, and the state’s failings led to the injuries Walker suffered.

Now this is a distinction without a difference ...

… as is this.

No one contested that DOTD had control over the rotten oak tree, that the rotten oak tree was defective, and that the rotten oak tree caused Walker’s injuries. Instead, the Court held that the primary issue was whether DOTD had actual or constructive knowledge that the tree was rotten. The condition that caused the oak tree in question to fall was visible only on the backside of the tree, out of sight of DOTD inspectors who passed by on the road. There was no genuine issue as to the location of the rotten area in question or whether the rotten area in question was observable from the roadway. Additionally, the photographs taken at the accident scene revealed that the oak tree was otherwise healthy, containing a full canopy of green leaves.

The Court said that DOTD’s duty to protect against the risk of a tree falling onto a highway required it to inspect for dead trees and remove them within a reasonable time. The state was not required, however, to inspect every tree that conceivably could fall on the road or to remove trees simply because they had the potential to fall onto the road.

In Caskey, the court held that DOTD inspectors had no duty to walk around all sides of the tree and check for damage, particularly when the tree was otherwise green and healthy. The trial court in this case imposed a greater duty on the state than the law required. The Court of Appeals ruled that the trial court’s incorrect determination – that a different duty exists when the defect results from natural causes as opposed to artificial causes – was a contradiction of the law, a distinction without a legal difference.

– Tom Root

Case of the Day – Thursday, May 28, 2026

Posted on May 28, 2026 by TLRoot tagged.

EXPERIENCE MATTERS

Ask a Cleveland Browns fan (if there are any left, that is): Experience really does matter. Grabbing the hottest college quarterback (Charlie Frye, Brady Quinn, Colt McCoy, Johnny Manziel, Deshawn Kiser, Shedeur Sanders,) with zero NFL experience has not been Jimmy Haslam’s ticket to the Super Bowl. And then, we got Baker Mayfield. He lasted longer than most, but he ended up as yet another college QB standout, sent to Cleveland to die. At least he’s got a second act in Tampa… and a pretty good one at that.

Finally, the very expensive quarterback Deshaun Watson, who may finally be in the backfield for a full season. He’s an experienced fighter… unfortunately, many say, the fighting so far has been with women, not opposing teams.

To borrow Samuel Johnson’s description of a second marriage, it’s the triumph of hope over experience.

Experience does make a difference. That’s a lesson we can take away from today’s case.

There’s another lesson, too, illustrated by the old criminal law adage that no defendant should ever trust his freedom to 12 people who are too stupid to know how to get out of jury duty. Part of that maxim is based in reality: despite the Constitutional promise of a “jury of your peers,” most trial attorneys know that the jury generally ends up overpopulated with government workers (who get time off with pay for jury duty), such as county workers and schoolteachers, or retirees. Professionals, business owners and managerial types – to name a few – usually finagle their way out of the jury dock.

You’re much more likely to get 12 confused jurors than you are to get angry ones …

Historically, the facts found by the jury are virtually bulletproof. This is partly because tradition and the Constitution have sanctified the community judging concept represented by juries, and partly because the legal system has to have some method of deciding facts with some finality.

Nevertheless, social scientists tell us that there is wisdom in the crowd. Is the jury is right more than it’s wrong? Perhaps it isn’t. Because the law accords such respect to the secrecy of jury deliberations, we may never know.

Today’s case illustrates how carefully appellate courts parse jury findings. It’s quite common for the trial-court loser to complain on appeal that the jury findings were wrong. As the Maine Supreme Court makes clear to us, it’s quite uncommon for the appellate court to agree.

Back in the spring of 2011, Keith Anthony asked his neighbor, Paul Gagnon, to help him cut down a rotten tree. Both Keith and Paul were accomplished tree professionals. Paul used a chainsaw on the 30-inch trunk while Keith pushed on it with a Bobcat. Suddenly, the tree “exploded.” A falling limb knocked Paul unconscious and seriously injured him. (Despite the fact that Paul subsequently died during the litigation, he did not succumb to injuries from the tree).

Paul sued Keith for negligence, arguing that Keith should have warned him that the tree could explode and that he shouldn’t have been pushing on the tree with the skid-steer. In his answer to Paul’s complaint, Anthony argued that Paul was negligent, too, raising what’s known as the affirmative defense of comparative negligence. The trial court jury found that both Keith and Paul were negligent and that Paul was at least as negligent as Keith in causing his own injuries.

The appellate courts do everything possible to tip the scales in favor of the jury. Its standard of review – the deference the courts of appeal will give the jury’s decision – is to uphold a jury’s verdict if, when viewed in the light most favorable to the winning party, there is any credible evidence in the record to support the verdict. This means that if five witnesses said Keith drove the Bobcat over Paul’s foot, but one witness said that Paul deliberately stuck his foot under the wheels, the jury’s decision to go with the one witness and reject the observations of the other five will be upheld. Appellate litigation can be like watching those hapless Browns get outscored 30-0 by the Ravens for the first 59:30 minutes of the game, only to have Cleveland score a single field goal in the final thirty seconds and win.

Here, the Court decided that no one expected the tree to explode. Shortly after the accident, Paul admitted that he didn’t think Keith was doing anything with the skid-steer that contributed to the tree breaking or falling too soon. Keith corroborated the accidental nature of the event, testifying that the tree “just dropped suddenly without warning or anything.”

The Court went out of its way to note that both Paul and Keith “had substantial experience cutting trees and working in the woods, and both were aware of the rotted condition of the tree they were working on.” A Maine arborist testified that using the Bobcat to try to bulldoze the tree over while someone else sawed at it was, charitably put, a stupid idea. Under the circumstances, the Court said, both Paul and Keith should have known better than to try to use a skid-steer to push the tree over.

As for the jury, the Court reasoned that from the evidence, a jury could have concluded that Keith was negligent in operating the Bobcat; (2) either Keith or Paul or both were negligent because they should have known that the way they were cutting down the tree was dangerous; or (3) no one was negligent, and the tree “explosion” was just one of those things. Because the jury could have gone any of several ways on the verdict, its conclusion that both of the guys were knuckleheads was supported by the record.

In other words, there was enough evidence in the record for everyone. When that’s the case, the jury’s decision as to which version to credit stands.

And if you’re experienced enough to know better, a jury is going to hold you to your experience.

A Bobcat of the type that Keith misused …

Estate of Gagnon v. Anthony, 126 A.3d 1142 (Supreme Court of Maine, 2015). Keith Anthony asked his neighbor, Paul Gagnon, to help cut down a rotted tree at Anthony’s place. Both men were experienced woodcutters. The tree to be felled was about thirty inches wide with a large limb growing out of it. Gagnon used a chainsaw to make a wedge cut in the tree below the limb while Anthony used the bucket of his Bobcat skid-steer loader to push the limb away from the house and a nearby sapling. As they performed their respective tasks, the tree “exploded” and the limb fell on Gagnon, injuring him. Gagnon sued Anthony, alleging that Anthony failed to warn him about the possibility that the limb could snap because of the rotted condition of the tree, and also alleging that Anthony was negligent in his operation of the Bobcat. Anthony raised an affirmative defense of comparative negligence under 14 M.R.S. § 156 (2014).

A trial jury found that both Anthony and Gagnon were negligent and that Gagnon was at least as negligent as Anthony in causing his own injuries. The Estate’s motion for a new trial was denied, and this appeal followed.

Held: The jury’s verdict was upheld. The Court said it would uphold a jury verdict if, when viewed in the light most favorable to the prevailing party, there is any credible evidence in the record to support the verdict. Gagnon, as the movant, was required to show that the jury verdict was so manifestly or clearly wrong that it is apparent that the conclusion of the jury was the result of prejudice, bias, passion, or a mistake of law or fact.

The Maine Supreme Court said it was clear from the record that neither man expected the tree to “explode” as it had. In a recorded statement that was admitted in evidence, Gagnon explained that the tree “broke way too soon, it should have never broke at that point.” In his statement, Gagnon placed no blame on Anthony, stating that he did not believe that Anthony was doing anything with the skid-steer that contributed to the tree breaking or falling too soon. Anthony corroborated the accidental nature of the event, testifying that the tree “just dropped suddenly without warning or anything.” Furthermore, the evidence showed that both Gagnon and Anthony had substantial experience cutting trees and working in the woods, and both were aware of the rotted condition of the tree they were working on. The Court dryly observed that “it would not be unreasonable to infer from this circumstance that both men knew, or should have known, the risks associated with cutting the rotted tree, and both should have known that the plan to use the Bobcat to fell that tree was ill-advised.”

The Court said that the evidence was sufficient for the jury to decide any of three ways. The jury could have found that (1) Anthony was negligent in his operation of the Bobcat; (2) either Anthony or Gagnon or both were negligent because the dangerousness of the method they undertook to fell the rotted tree should have been obvious to each; or (3) neither of them was negligent, and the limb falling onto Gagnon was simply an unexpected accident. Where the causal fault of both parties is in dispute, the Court said, “it is the sole prerogative of the jury to determine the comparative degrees of fault of each of the parties to a negligence action.”

Although the record did contain evidence that Anthony accepted some responsibility for Gagnon’s injuries, and although a licensed Maine arborist testified that pushing a tree with a skid-steer is “not the proper way to do it,” the Court ruled that there was sufficient credible evidence in the record to support the jury’s finding that Gagnon was at least as negligent as Anthony.

Thus, the trial court didn’t abuse its discretion in denying Gagnon’s motion for a new trial.

– Tom Root