Case of the Day – Friday, February 20, 2026

Posted on February 20, 2026 by TLRoot tagged.

THE DOMINATRIX

Hardly anything can sow discord among neighbors like an easement. Rarely described with much specificity or limited as to use by a detailed statement of purpose, easements cause problems for the holder. Or the grantor. Or often, both.

Where the easement is for the benefit of an adjacent property owner, we talk about the dominant estate – the property being benefited – and the subservient estate, which is the property (or property owner) burdened by the easement.

In today’s case, the Dzingles bought a landlocked parcel of land about 60 years ago, and – in order to get back and forth from the road – bought an ingress easement from their neighbor. As the name implies, the easement, 25 feet wide and containing a “trail,” was intended to let the Dzingles get to and from their property. The property was held by the Marilyn Dzingle Trust, making her sort of the Dominatrix.

The mind is fallible (just ask Joe Biden… or even Donald Trump). Especially where the owner of the subservient estate (cool term, right?) sells the property to someone else, someone like Jim Platt. Jim knew what he was buying, and he wasn’t the kind of guy to spend a lot of time poring over deeds and those appurtenances, principal places of beginning, heirs and assigns, and all of the legal mumbo jumbo. He knew the Dzingles had a driveway going over his land, and who needed to know any more than that?

Jimbo, that’s who. When Dzingle cleared vegetation from either side of his drive (but within the 25’ limit of the easement), Platt objected that the Dzingles had diminished the value of his property. When Platt dropped a dumpster next to the driveway, crowding the use of the road, the Dzingles objected right back. Platt said, “Sure, I’m encroaching on the easement, but you still have enough room to get by.”

Well, enough was finally enough. When the Dzingles wanted to build a modular house, they needed 22 feet of clearance to haul the pieces in. Those of us who are good at math can figure that this should be fine, with 1½ feet of clearance on each side. Well, yeah, except for Jimmy’s dumpster, and he would not move it.

So the Dzingles took Jimmy Platt to school, this class being held in a courtroom. And by the time class was over, Jimmy Platt figured out what all that fine print on the deed really meant.

Dzingle Trust v. Platt, Case No. 330614 (Ct.App. Mich., Feb. 14, 2017) 2017 Mich.App. LEXIS 227. The Dzingles had contentedly enjoyed their landlocked 59 acres for nigh on 50 years, partly because they had had the foresight to buy a 25-foot ingress easement from their neighbor. But time passed, and after Jim Platt bought the subservient estate, the parties began feuding over what rights the dominant estate had over the easement.

The deed granting the easement stated that it was “an easement for ingress and egress over a parcel of land 25 feet wide…” and referred to an attached survey for the exact location of the easement. The survey clearly identified the location of the easement and indicated that the “existing trail lies entirely within easement.”

The Dzingles placed gravel in the easement and cleared vegetation to use it for ingress and egress and to improve his attached residential property with a water well and pond, which required large trucks to use the easement. They planned to build a modular home on the property, but delivering the modules would require 22 feet of clearance, just within the easement’s 25-foot width. Jim complained that the Dzingle’s vegetation cutting within the easement “unreasonably burdened my property and eliminated my use of the property.” For their part, the Dzingles complained that Jim Platt’s placement of a dumpster in the easement did not let them use the full 25 feet for ingress and egress. That may be so, Jim said, but it did not keep the Dzingles from ingress or egress.

The Dzingles sued for a declaratory judgment regarding their rights to remove obstructions to bring the modular home onto the property and asked the trial court to order Platt to remove his dumpster and any other obstacles from the easement. The trial court granted summary judgment to the Dzingles, holding they were entitled to the full 25-foot easement, and clearing brush from the easement was not an addition or improvement to the easement. The trial court rejected Jim Platt’s argument that the Dzingles’ proposed use of the easement would materially increase the burden on his estate because their rights as the dominant estate to ingress and egress on the easement were paramount to Platt’s rights to wildlife and natural beauty. Finally, the trial court ruled that Platt must remove his dumpster from the easement because it was inconsistent with the Dzingles’ rights to ingress and egress.

Jim Platt appealed.

Held: The Dzingles’ rights extended to the whole 25 feet of the easement, and those rights included trimming vegetation so that the easement was usable for its intended purpose. It’s a rough lesson for a subservient estate holder to learn, but the dominant estate holder’s “rights are paramount to the rights of the soil owner to the extent stated in the easement grant.” The language of the instrument that granted the easement determines the scope of the easement holder’s rights.

In this case, the deed grants the Dzingles an easement for “ingress and egress.” The deed does not define ingress and egress, so the Court referred to a dictionary to determine the common meaning of the terms. “Ingress” is the “right or ability to enter; access,” and “egress” is defined as the “right or ability to leave; a way of exit.” Thus, an “ingress-and-egress easement” is an easement that grants the right to “use land to enter and leave another’s property.” Thus, the Court concluded the deed expressly granted the Dzingles the right to enter and leave their property, and the right to do so is paramount to Jim Platt’s rights in the same property.

What’s more, the easement gives the dominant estate “all such rights as are incident or necessary to the reasonable and proper enjoyment of the easement.” While the dominant estate’s exercise of the easement must place as little burden as possible on the subservient estate, still “the making of repairs and improvements necessary to the effective enjoyment of an easement… is incidental to and part of the easement.”

A repair maintains an easement in the condition it was in when the easement was made. Improvements, on the other hand, are alterations to an easement, and alterations are not permitted unless necessary for the effective use of the easement, provided they unreasonably burden the servient tenement. Here, the Dzingles offered evidence that clearing vegetation, placing gravel in the easement, and using the easement to allow large trucks to improve the Dzingle acreage were consistent with the use of the easement since the easement was granted. Thus, the Court said, the Dzingles “presented evidence that removing vegetation and leveling would maintain the easement in the condition and uses it was in when the easement was granted. Platt presented no contrary evidence that clearing or leveling were outside the easement’s scope or changed the easement’s character.”

Finally, the Court said, any rights in the grant of an easement must be reasonably construed. The Dzingles have a right to reasonable ingress and egress, but they are not entitled to an unobstructed right-of-way. However, the Court said, the evidence showed that Jim’s dumpster intruded into the easement, and the Dzingles showed they needed at least 22 feet of the 25-foot easement for clearance to move the modular home pieces onto the property. Jim Platt may use the easement as long as his use does not interfere with the Dzingles’ right of ingress and egress. However, the Court said, because the Dzingles need the vast majority of the easement for ingress clearance and the dumpster intrudes into the easement, Jim Platt must move the dumpster.

– Tom Root

And Now The News …

Posted on February 20, 2026 by TLRoot tagged.

Brooklyn, New York, February 19, 2026: Brooklyn Heights to fill every empty tree bed with a new tree

Brooklyn Heights will become greener and shadier in 2026, with a plan to plant a new tree in every empty, viable tree bed, the Brooklyn Heights Association announced in their newsletter Thursday. All of the neighborhood’s street tree beds will be inspected by the BHA’s volunteer Brooklyn Heights Tree Team this spring, and, in partnership with the New York City Parks Department, planting will begin in the fall. For more information, email trees@thebha.org. The ambitious effort is in collaboration with Councilmember Lincoln Restler’s District 33 Street Tree Plan, which aims to fill every viable street tree bed from Greenpoint to Boerum Hill. Restler says his office has invested over $1.5 million in trees through capital allocations and donations to the District 33 Street Tree Fund. The goal is to plant more than 1,000 trees districtwide by the end of the year…

Portland, Maine, Maine Public Radio, February 19, 2026: South Portland, Portland Jetport reach settlement over tree clearing

The City of South Portland, the Portland International Jetport and the Roman Catholic Diocese of Portland have reached a settlement agreement in a dispute over tree clearing in a South Portland neighborhood last year. In January 2025, the Portland Jetport began clearing trees on two plots of land owned by the Roman Catholic Bishop of Portland. The Jetport is required by federal regulations to maintain the airspace surrounding the airport for runway approach. But according to the City of South Portland, the tree cutting happened without site plan or tree protection plan approval from the city. The Jetport disturbed protected wetlands and removed more trees than had previous been agreed upon in a 2019 plan. Now, after months of litigation, the three parties have settled. The Jetport has agreed to pay $125,000 in restitution for cutting down trees and disturbing the adjacent wetlands and has committed to replanting at least 75 mature trees in the affected area, according to the settlement agreement…

Phys.org, February 19, 2026: Archived tree cores reveal why boreal forests are getting starved for nitrogen

Despite decades of industrial deposition, nitrogen availability in the boreal forest is steadily declining. In a new study published in Nature, researchers from the Swedish University of Agricultural Sciences using decades of unique, stored data have found that atmospheric CO₂ is the main driver. Studies from North America and global meta-analyses have in recent years shown declining nitrogen stable isotope values in tree rings, which serve as an indicator that nitrogen availability is decreasing over time. Why this happens is the key question. Two alternative theories have been proposed, either falling atmospheric N deposition rates since the 1990s, or rising CO₂ levels in the atmosphere. And that is what the new study from SLU by lead author Kelley Bassett, Ph.D. student at the Department of Forest Ecology and Management, has been able to answer, using 60 years’ worth of archived tree cores. The unique material works like a time machine, where the nitrogen isotope values of spruce and pine can be traced back decade by decade…

Portland, Oregon, The Oregonian, February 18, 2026: Oregon tree removal company owner sentenced for $3.5M tax evasion

The owner of a Happy Valley-based company that did tree removal and landscaping was sentenced Wednesday to a year and three months in federal prison for failing to pay more than $3.5 million in taxes over seven years ending in 2024. Leard withheld taxes from her employees’ wages from 2017 to 2024 but did not pay the money to the Internal Revenue Service as required or file quarterly payroll tax returns, prosecutors said. She instead used the money to buy about $3.5 million in real estate in her name, according to Megan E. Wessel, a U.S. Department of Justice lawyer. She also failed to file personal income tax returns from 2017 through 2023, Wessel said. Wessel urged the judge to sentence Leard to two and a half years in prison and order her to pay $2.9 million in restitution, representing the amount of federal tax due minus payments already received from Leard. Leard failed to “fulfill serious legal obligations for many years and it should carry serious consequences,” Wessel said…

Cincinnati, Ohio, Enquirer, February 17, 2026: Ohio quarantined for spotted lanternfly. What does that mean?

Under the quarantine, products such as trees and nursery stock may not be moved out of Ohio without a compliance agreement, permit or inspection certificate, according to ODA’s release. Producers who ship these products to non-regulated areas must have their stock inspected and each load must be accompanied by a certificate which confirms their product is free of SLF. The spotted lanternfly, native to Asia, was first spotted in North America in 2016, in Pennsylvania, according to the Ohio Department of Natural Resources. It was first identified in Ohio in 2020, per the Ohio Department of Agriculture. The insects feed on a variety of plants, causing them to wilt and die back, making them susceptible to damage from outside factors, such as mold. They’re particularly fond of the tree of heaven, also an invasive species, as well as grapes and hops, according to ODNR. The spotted lanternfly lays eggs from October through December, per the ODA. The egg masses — which are small and gray, and protected by a waxy coating — are placed in sheltered areas of trees, buildings, firewood, outdoor furniture, lawn equipment and rocks…

Fort Worth, Texas, Report, February 18, 2026: Here’s what the care looks like for Fort Worth trees following winter freeze

While plant life can be negatively impacted by extreme cold temperatures, Fort Worth’s tree canopy did not see “significant damage” during Winter Storm Fern, city officials say. The winter is an ideal time for Fort Worth’s urban forestry management team to prune trees, said city forester Hannah Johnson. Cold snaps typically prompt the city’s hazard abatement team to closely monitor reports and clear high-traffic roads of downed limbs or damaged trees, if any, to ensure conditions are safe for first responders. Forestry staff check young trees, either those just planted or growing at the city’s tree farm, are properly watered ahead of freezes. Moist soil helps insulate roots and reduces stress stemming from weather conditions on young trees, Johnson said…

San Luis Obispo, California, KSBY-TV, February 18, 2026: Saturated ground and strong winds causing trees to fall

With the ground saturated and more wind and rain on the way, tree experts say downed trees may be a common sight over the coming days. Janet Emmons and her family have lived on their property just off Squire Canyon Road in San Luis Obispo since 1995. Emmons says they are no strangers to tree problems, including the tree that fell overnight on their property. “We had a tree go down on the house about 15 years ago, so since then we’ve been very careful to make sure we monitor and trim limbs as much as we can,” Emmons said. That’s where Ron Rinell and his team at Bunyon Brothers come in. Emmons says she has him out about once a year to inspect things, or in cases like this, to do tree removal. “When the soil becomes saturated, it’s less for the tree roots to hold on to, so then you throw in the winds and we have a higher chance of leverage of trees to fall over,” said Bill VanHorbek, Master Arborist with Bunyon Brothers…

Seattle, Washington, Times, February 18, 2026: Disneyland tree falls on visitors during a ‘crazy windy’ night

A Nevada couple visiting Disneyland were hit by a large tree just off Main Street U.S.A. that snapped and fell on top of them during a “crazy windy” night at the Anaheim theme park, according to social media reports. “My husband and I were the ones hit,” LeWanda Joseph of Las Vegas wrote on the Disneyland Magic Keyholders Facebook group. “The tree fell directly on top of us.” A ficus tree fell on Tuesday around 11:40 p.m. on the Plaza Inn patio that was unoccupied due to the rain, according to Disneyland officials. Two Disneyland guests in the area were treated by Disneyland First Aid for minor grazes and released, according to Disneyland officials. The Disney Fire Department worked with multiple Disneyland teams to clear the tree overnight, according to Disneyland officials. LeWanda and Mark Joseph were not seriously injured by the tree that fell near the Little Red Wagon corn dog cart between the Plaza Point shop and Plaza Inn restaurant…

Tacoma, Washington, News-Tribune, February 16, 2026: Can I cut my neighbor’s tree if it’s on my property? What Washington law says

It’s a familiar experience: You step outside to find your yard covered with tree limbs and leaves. Washington residents may wonder what happens when it’s not your landscaping that is making a mess, but your neighbors’. Are you allowed to cut your neighbor’s tree if it’s across your property line? Who’s required to clean up leaves, twigs and broken branches that fall over the fence? Here’s what Washington state law says: In Washington state, who owns a tree “depends on the location of the tree’s trunk at ground level,” according to Sound Tree Care, a SeaTac company that provides arborist services throughout the Puget Sound. “If the entire trunk is located on one property, that tree is typically owned by that property owner,” Sound Tree Care said. If that trunk sits directly on the boundary between two properties, it belongs to both neighbors under Washington state law. “Ownership affects who can legally prune, remove or alter the tree,” Sound Tree Care says…

London, UK, BBC, February 15, 2026: Does a tree know it’s being eaten?

From roots to canopy, many trees can indeed tell if they are being eaten – and by whom. They have evolved extraordinary abilities to discern chewing by beetles and caterpillars, piercing and sucking by bugs, acoustic vibrations from grasshoppers, deer saliva, microbes left by various animals, even the stress signals released by nearby trees being browsed by giraffes. Many trees respond by making more unpalatable chemicals or growing tougher leaves. Oaks, for example, produce more tannins and phenol compounds after heavy grazing by caterpillars. Pines, elms, acacias and many others release alarm gases that attract predators, such as parasitic wasps, to attack their enemies. Lodgepole pines share information about mountain pine beetle infestations with neighbouring pines, and those trees react by boosting their own chemical defences. Climate stress may weaken such resilience, though. Research shows that Aleppo pines are up to 75 per cent less able to respond to a pine weevil attack during drought…
Phys.org, February 16, 2026: AI tool suggests tree species and placement to cool urban streets by 3.5 C

Urban landscapes could be cooled by up to 3.5 degrees using a QUT-developed AI-based tool that optimizes where trees and which species are planted to make cities cooler, greener and more resilient in the face of climate change. The study, Algorithmic urban greening for thermal resilience: AI-optimised tree placement and species selection, was published in Cities. First author Queensland University of Technology Ph.D. researcher Abdul Shaamala from its School of Architecture and Built Environment said city planners could use the tool to prioritize species and location of tree plantings in urban areas at risk of overheating during extreme heat. “The urban heat island effect—where built-up areas experience higher temperatures than surrounding areas—increases heat discomfort, energy consumption, and public health risks, especially for the elderly, children and low-income communities,” Mr. Shaamala said. “The strategic placement of urban trees chosen for their shade and cooling capacities is a promising way to harness their capacity to moderate microclimatic extremes…

Asheville, North Carolina, Watchdog, February 13, 2026: Answer Man: ‘Radical tree trimming’ by Duke Energy contractors in Weaverville?

Question: I am curious who is responsible for the cleanup of tree trimming by Duke power in an easement. They have destroyed a good portion of our (easement) property with radical tree trimming and tree felling. The debris — in some cases wrapped in old steel leader lines from the power lines — still remains on the hillside from three-plus months ago. Although I have called and emailed their sites/customer service, we are still left with much tree debris, pieces too big to move, and it is still there. The last tree that fell from the storm still remains in the middle of our parking lot of our business — in several large pieces. I was just given a “work order number” from the tree trimming (not debris cleanup) department and was told we would hear from someone in 10 business days. Who is responsible for this mess? This property is on Clarks Chapel Road in Weaverville.
My answer: Hmmm…gonna make a wild guess here and say, “Not Duke?”
Real answer: Duke Energy spokesperson Logan Stewart first noted that “trees and vegetation are the No. 1 leading cause of outages system wide. “This is especially true in western North Carolina where we have a large tree canopy,” Stewart said. “While our vegetation management program helps lessen storm damage and power outages, we do not clean up tree debris that results from severe weather.” Duke Energy says its top priority after a storm is to clear trees and restore power as soon as possible. The company is not responsible for removing tree debris, a spokesperson said. // Watchdog photo by John Boyle I drove by the area in question Tuesday, and you can see where the crews have cut around the power lines. There was one sizable log lying in the ditch that was wrapped up in the aforementioned leader cables, so that would be a difficult removal…

Case of the Day – Thursday, February 19, 2026

Posted on February 19, 2026 by TLRoot tagged.

ACORNS KEEP FALLIN’ ON MY HEAD…

It started as a simple idea: establish a court without lawyers, a place where people with a beef could be heard, where small-scale justice could be dispensed, and where people could find common-sense answers to problems. And thus, small claims court was born, having its origin – ironically enough – as the “court of conscience” in medieval England.

The rules are simple, the docket is swift: usually, from the filing of the action to the hearing, not much more than a couple of weeks pass. There is no fancy-Dan pleading, no arcane procedures, no onerous discovery. Just two people with a problem and one judge to listen and decide.

Many years ago, long before law school interrupted my life, I sent roses by FTD to a girl in another state on Valentine’s Day. I thought it strange when she thanked me for the “flowers.” People would normally say, “Thanks for the roses.” After about the third time she said “flowers” instead of “roses,” I thought to ask her what she had received from me. It turned out that I paid for roses, and got a mixed-flower arrangement suitable for a funeral… but not a valentine.

When I complained to my local florist, he told me dismissively that if the receiving florist in the other state was out of roses, he or she could substitute “another arrangement of equal value.” Getting no satisfaction there, I filed a small claims complaint. On the day of the hearing, the flower shop owner stalked into the courtroom and gave me my money back.

Sweet justice!

So I love small claims court. But I recognize its principal drawback: lawyers can still show up and make a mess of things. That’s what happened in today’s case.

Daphne Kohavy, a savvy resident of Gotham, rented a parking space in a lot next to her co-op apartment building in the Bronx. The co-op had a management company, Veritas, running the lot. Daphne’s car was parked under an oak tree that rained acorns on her ride. This should not seem surprising to many of us who understand that those funny little acorns hanging on oak trees like to drop. But Daphne was a New Yorker and had only the most fleeting acquaintance with green things that grow from the earth. The acorn rain surprised her, and – according to her complaint – caused over $1,500 in damage to her wheels.

She sued in small claims court. Veritas brought its lawyers (in its defense, the law required it appear through lawyers because it was a limited liability company). Its lawyers started milking the case for fees, filing motions to dismiss for all sorts of reasons.

The court was not amused. Small claims court is supposed to be easy, where parties air their claims instead of tying each other up in “gotcha” motions. The court scolded the defendants, holding that because Daphne said the tree was defective, she should have a chance at trial to prove it.

We don’t think much of Daphne’s lament. Oak trees drop acorns. That’s no surprise. But on the other hand, Veritas tried to muck up the small claims process (forcing poor Daph to go out and hire her own lawyer). Perhaps distributive justice – where the right thing gets done for what nominally is the wrong reason – triumphed.

Kohavy v. Veritas Management, LLC, 2017 N.Y. Misc. LEXIS 1380 (Civil Ct. Bronx County, 2017): Daphne Kohavy leased a parking space next to her apartment building on a parking lot owned by defendant 511 W. 232nd Owners Corp. Veritas Management, LLC was the lot’s managing agent. While parked there, Daphne’s car was damaged by acorns falling from a tree overhanging her parking space. It sounds like classic encroachment and sensible harm. She sued in small claims court for $1,500.

Veritas, through its lawyers, moved to have Daphne’s claim dismissed because it was just the manager, not a party to the contract for her space between Daphne and the Co-op, and not the owner of the lot or the oak tree. What’s more, Veritas claimed, it did not maintain exclusive control of the premises, and even if it did, the law does not recognize a cause of action in negligence for damage due to falling acorns.

The motion to dismiss also claimed that the Co-op could not be held liable as the damage to Daphne’s car was caused by a healthy tree, and even it was not, the Co-op lacked notice of any such defect.

Held: The court began by scolding Veritas for gumming up the court’s processes with dispositive pretrial motions, noting that the “informality and convenience of small claims practice is necessarily frustrated by requiring pro se litigants to respond to formal motion practice…” But in the interest of moving things along, the Court addressed Veritas’ motion.

The Court found that there was a question of fact (because Daphne had said so) regarding the condition of the overhanging oak tree that had damaged her car. While the Court said there was no privity of contract between Daphne and Veritas, “questions of fact with regards to defendant Veritas’ control over the parking lot, as per the terms of the management agreement between defendant Veritas and defendant Cooperative, exist.” If Daphne could show that Veritas maintained exclusive control over the parking lot under the management agreement between it and the Co-op, and that Daphne’s damages were the result of Veritas’ negligence, she might be able to recover in negligence from Veritas.

The Court noted that Daphne “commenced this Small Claims action as a pro se litigant. It was not until the plaintiff was served with this instant motion that the plaintiff retained counsel to represent her. Accordingly, in this case, the filing of this instant motion prior to a hearing has indeed frustrated the purpose of New York City Civil Court Act § 1804 and its concern for protecting inexperienced pro se litigants and providing them with an expeditious and inexpensive forum to resolve small claims.”

– Tom Root

Case of the Day – Wednesday, February 18, 2026

Posted on February 18, 2026 by TLRoot tagged.

WATCH OUT FOR THAT TREE!

The old ‘60s cartoon George of the Jungle featured an earworm theme song that always warned George to “watch out for that tree!” just before he collided with an unforgiving trunk. Tom Kranz discovered that life imitates art.

Grandpa Tom should have watched out for that tree, too. As he pushed his granddaughter’s stroller past the Perkinses’ house, he noticed a limb from one of their trees was overhanging the sidewalk. He moved onto the tree lawn to sidestep the branch, but somehow managed to skewer his eardrum with a twig.

Ouch. But in a case with parallels to yesterday’s coffee-shop debacle, Tom sued the Perkinses, claiming they owed him a duty to be sure he did not run into a branch he could clearly see and avoid. And just like yesterday, the court said (albeit it with some legalese), “C’mon, man!”

Even when someone is just walking past your house, they are a licensee, entitled to use the public sidewalk, and you have a duty not to engage in willful or wanton conduct that cause them harm. But an untrimmed branch does not rise to such willful or wanton conduct, and that’s especially so where the pedestrian is perfectly able to see the danger. Tom admitted to an accident investigator that the tree was “easy to go around.” Where a licensee has equal knowledge of the dangerous condition or the risks involved, the court told Tom, “there is no willful or wanton action on the part of the owner and there is no liability to the licensee.”

Common sense… parents, mind your kids. And Tom, for heaven’s sake, watch out for that tree.

Perkins v. Kranz, 316 Ga.App. 171 (Ct.App. Georgia, 2012). While walking in a Gwinnett County subdivision, Thomas Kranz’s eardrum was punctured by a branch from a tree overhanging the sidewalk. Kranz sued Jerry and Nyda Perkins – on whose property the tree was located – claiming negligence. The Perkinses asked the trial court to throw out Tom’s complaint, but it refused.

The Perkinses appealed.

Held: Tom’s case was thrown out. After all, he saw the tree, with its limbs extending over the sidewalk, obstructing his path. To avoid them, Tom moved off of the sidewalk onto the strip of grass between the sidewalk and street. But as he passed the tree, he felt a sharp pain, and eventually realized that a twig had entered his ear and pierced his eardrum.

The essential elements of a negligence claim are the existence of a legal duty, breach of that duty, a causal connection between the breach and the plaintiff’s injury, and damages. The threshold issue is whether the Perkinses owed a legal duty to Tom Kranz. The Perkinses argued that Tom was, at best, a licensee, but Tom said he was an anticipated licensee and argued the Perkinses had to exercise ordinary care to prevent injuring him.

But the Court said it did not matter what Tom was. “Pretermitting any decision on Kranz’s potential status as a licensee, anticipated licensee, or invitee, he may not recover as a matter of law because the evidence establishes that he had equal knowledge with the Perkinses of the potential danger posed by the tree.” In other words, the Court said, Tom could see the branch. If he was negligent enough to walk into a tree branch he could easily observe and avoid, he had no one to blame but himself.

An owner, the Court held, “has no duty to a licensee to keep the premises up to any standard of safety, except that [the property] must not contain pitfalls, mantraps, and things of that type.” Here, the tree and its overhanging branches were “in no way a pitfall, mantrap, or hidden peril.” Tom should have avoided the danger. He did not. Tough luck.

– Tom Root

Case of the Day – Tuesday, February 17, 2026

Posted on February 17, 2026 by TLRoot tagged.

TEACH YOUR CHILDREN WELL

This is hardly a law school final exam question: Two parents and a couple of hellion-spawn walk into a Starbucks. The kids promptly begin running amok, using the furniture and fixtures like a jungle gym. Specifically, the whelps start swinging from ropes and climbing stanchions used to mark off the line for coffee. After taking plenty of abuse from the ankle-biters, one of the stanchions falls, injuring one of the kids.

Quick: Who’s liable?

If you said Starbucks, we congratulate you, because you have a wonderful future ahead of you as a plaintiff’s attorney. If you said the parents should be responsible for their offspring’s monkeyshines, you have a future, too… as a judge.

The Roh family, a father and mother, and a pair of boys – ages 3 and 5 – visited a newly-opened Chicago Starbucks. This one had some fancy line dividers (as the line-divider industry calls them), made from repurposed 19th-century ironwork. The dividers were mounted on concrete plugs to prevent tipping.

You’ve probably seen parents like these two, maybe focused on their smartphones, perhaps lost in conversation, perhaps just tuned out… the kids run wild, and their folks remain oblivious. But when the inevitable disaster befalls, it becomes anyone’s fault except the kid’s. Or the parents’…

But contrary to breathless Internet stories and hand-wringing commentators, America remains a land of individual responsibility. To be sure, a landowner who invites kids onto the premises is liable for dangerous conditions where the risk to the child is reasonably foreseeable. But while this rule applies when a kid is on his or her own. But where the child is with a parent, the landowner may be relieved of his or her duty to the child because parents are primarily responsible for their child’s safety, because it is their “duty… to see that his behavior does not involve danger to himself.”

What a refreshing concept! Parents are responsible for their kids…

Roh v. Starbucks Corporation, 881 F.3d 969 (7th Cir. 2018): The Roh family was visiting a recently opened Starbucks store in downtown Chicago, consisting of two parents and their sons, Marcus, age three, and Alexander, age five. The store had custom metal stanchions placed near the main counter to direct customer traffic, made from posts fabricated from 1800s-era iron fences or stair posts. The stanchions were freestanding but mounted on heavy concrete bases and connected with ropes to control shopper traffic.

As the family was leaving, the parents heard their son Marcus begin crying. The father, who had heard a loud noise immediately preceding Marcus’s cries, saw that one of the stanchions had been knocked to the ground, striking the boy and pinning his hand. Marcus lost his left middle finger and seriously injured his index finger.

Neither parent witnessed what had happened, but the boys admitted to swinging on the ropes, running around the dividers, and climbing the stanchions.

Naturally, the Rohs sued Starbucks, claiming it was negligent by failing to safely maintain the premises, to adequately secure the stanchion, to properly inspect it to ensure its stability, to warn patrons of the potential danger posed by the stanchion, or to realize that minor patrons would not appreciate the risk posed by the unsecured stanchion. The district court granted summary judgment for Starbucks, holding that the boy’s parents, not Starbucks, bore the responsibility to protect Marcus from the obvious danger posed by playing on the unsecured stanchions.

The Rohs appealed.

Held: The Rohs collect nothing, because any duty owed to Marcus by Starbucks was abrogated by his parents’ presence with him in the store that day.

Whether a duty exists in a given case turns on the foreseeability and likelihood of the injury, the difficulty of guarding against it, and the consequences of laying the burden to guard against the danger on the defendant.

Generally, landowners or occupiers in Illinois owe no greater duty to small children than the duty owed to adults. In premises-liability cases involving injury to a child, “the true basis of liability [is] the foreseeability of harm to the child.” The Court said that a child’s injury will be deemed foreseeable to the landowner if (1) the owner or occupier knows or should know that children habitually frequent the property; (2) a defective structure or dangerous condition is present on the property; (3) the defective structure or dangerous condition is likely to injure children because they are incapable, due to their age and immaturity, of appreciating the risk involved; and (4) the expense and inconvenience of remedying the defective structure or dangerous condition is slight when compared to the risk to children.

However, things change when children are accompanied by their parents. This is because “the responsibility for a child’s safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself.” A landowner’s duty to a child is abrogated if “the child was injured due to an obvious danger while under the supervision of his or her parent, ‘or when the parents knew of the existence of the dangerous condition that caused the child’s injury’.”

Both parents admitted they saw the heavy stanchions. The Court stated the obvious, that “it is a matter of common sense that serious injury could result from climbing on the stanchions and swinging from the ropes connecting them together.” Maybe the parents did not foresee Marcus getting his finger crushed, but they didn’t have to foresee the particular injury. It is enough that the Rohs saw the stanchions, which were plainly very heavy. Any parent could foresee that a child hanging from the rope connecting the stanchions or otherwise playing on and around them could be injured, the Court said, and that is “sufficient to support the conclusion that Starbucks did not breach any duty to Marcus, who was engaged in an activity while under his parents’ supervision that could obviously lead to injury of some kind.”

What the Court was saying was they should have known better. “It was plainly evident to the Rohs that the heavy stanchions were intended to control traffic flow in the store; their failure to prevent their sons from climbing and playing on them led to Marcus’s injury, not the breach of any duty on Starbucks’ part.”

– Tom Root

President’s Day, 2026

Posted on February 16, 2026 by TLRoot

Case of the Day – Friday, February 13, 2026

Posted on February 13, 2026 by TLRoot tagged.

CAREFREE MOBILE HOME LIVING

Everything’s big in Texas … don’t get stung.

Texas is a pretty big place. So when Scott, who was selling a little 175-acre spread to Bill and Julie Coales, reserved to himself the right of ingress and egress — basically, a license to use a road through the land — we’re not talking a jungle trail. We’re talkin’ big. And we’re talking about moving a lot of mobile homes.

At least, that’s what the defendants said in today’s case. After they bought the place, the Coales decided move Julie’s parents onto the place and to do it in style. So they hauled in some house trailers, no doubt to let the old folks live in luxury. But by doing that, they constricted the 100-foot-wide path, making it harder for the Scotts to haul through … well, whatever big stuff the Scotts had to haul through.

The Scotts sued, claiming that they couldn’t get their own trailers in, drive through with their 18-wheelers, and turn off the road wherever they wanted to with their 4x4s. The Coales disagreed, contending that no one needed more than the small path down the center to get to their properties. Even in Texas.

The trial court disagreed with the Coales, and the Court of Appeals explained with some care why the unambiguous grant of the right of ingress and egress — coupled with the evidence that the Scotts needed the whole width of the former airstrip for moving in their own 18-wheelers, garbage trucks, and, yes, even their own mobile homes — meant that the neighbors’ use of the 100-foot wide, 31⁄2-acre right was “reasonably necessary and convenient.”

The Coales didn’t leave the Scotts much space to haul in their mobile home.

Everything’s big in Texas. Even 100-foot wide driveways.

Coale v. Scott, 2007 Tex. App. LEXIS 7171, 2007 WL 2428631 (Tex.App. Aug. 28, 2007). A 175-acre tract of Texas land was conveyed to Bill and Julie Coale in 2004, reserving to some other landowners “the right of ingress and egress on the part of all landowners” a roadway, which happened to be a 100-foot wide abandoned airstrip. After the Coales bought the property, they started placing two mobile homes on the north side of a trail that runs down the middle of the airstrip. They also installed a storage unit on the south side of the trail, as well as fencing, a ranch gate, and a septic system.

The Coales planned to move their parents into the trailer homes. They contended that “neither of these structures prevented the [other owners] from using the old trail that they and others before them had always used to get to their properties.” The property owners who had the right of ingress sued the Coales. The case went to the trial court jury on the issue of the width and location of the “passageway” across the land. The jury found in favor of the plaintiffs, deciding they had the right to use the entire 100-foot-wide tract for ingress and egress to their adjoining properties.

The Coales filed a rambling appeal, arguing that the plaintiffs were only entitled to a way across the Coales’ property that was reasonable and necessary for them to have passage to and from their property and imposed the least burden on the Coales’ property.

The Scotts thought their right of egress was fairly wide.

The jury’s finding was upheld. The Court noted that under Texas law, the terms ingress and egress indicate rights inherent in the owners of the dominant estate to pass through the servient estate. They do not imply the right to linger for recreational purposes. The owners of the dominant estate are entitled to the rights granted by the deed or grant instrument, and no more.

A grant or reservation of an easement in general terms implies a grant of unlimited use such as is reasonably necessary and convenient, and imposes as little burden as possible on the servient owner. As for the extent of the right, in the case of an unambiguous written instrument, courts will give effect to the intention of the parties as expressed by or as apparent from the writing.

Here, the Court said, the grant expressly provided “[t]his roadway is subject to the right of ingress and egress on the part of all landowners in the above described 173.45 acres tract.” No mention was made of any other rights of use, and none may be implied. The Court saw no reason to go outside of the clear language of the express grant. There was no dispute that the 3.629-acre tract was 100 feet wide. Instead, the dispute centered on what the Coales believed the plaintiffs actually needed to use for their rights of ingress and egress. The Coales argued the plaintiffs were only entitled to a way across the Coales’ property that was reasonable and necessary for them to have passage to and from their property, and that the dirt or gravel road that ran down the middle of the airstrip.

The Coates planned to install their parents in a nice, carefree mobile home.

The Court, however, held that the plaintiffs were entitled to the rights granted by the instrument, and no more or less. A grant or reservation of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as minimally burdensome as possible to the servient owner.

Here, the jury considered the language in the deed, a survey depicting the properties, the legal description of the properties in the tax records, photographs, and other testimony. One witness testified that for the past 20 years, he had turned into his property from any point on the airstrip. There were no gates or fences. He said the trailers the Coales placed on the airstrip impeded his access to his land, and if he were still driving his 18-wheeler, he would possibly drive over the Coales’ plumbing lines. Another witness testified she had used the whole width of the airstrip to bring her trailer into her land. Another witness testified that because of the Coales’ trailers, “you can only go one way. And if you want to pass two ways, you can forget it.”

Previously, cars going in the opposite direction could travel simultaneously by using the entire width of the airstrip. Now, one has to pull over to let the other one pass. Based on the evidence, the Court said, there was legally sufficient evidence to support the jury’s finding that the use of the entire 100 feet of the airstrip was reasonably necessary for the plaintiffs’ right of ingress and egress.

– Tom Root