Case of the Day – Wednesday, April 29, 2026

Posted on April 29, 2026 by TLRoot tagged.

TRADITION!

Teyve the milkman has nothing on the law when it comes to the reverence afforded tradition. That’s chiefly because development of the common law is based on the doctrine of stare decisis, shorthand for stare decisis et non quieta movere, meaning “to stand by decisions and not disturb the undisturbed.”

In common law legal systems, precedent – prior authority – is a principle established in one or more prior cases that is either binding on or persuasive authority for a court when deciding subsequent cases with similar issues or facts. Common law legal systems value deciding cases according to consistent rules, so that similar facts will yield similar and predictable outcomes, and people can fairly be said to understand what the law requires of them. Observance of precedent is the mechanism by which those goals are attained.

As Justice Brandeis famously wrote, however, “The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible… Stare decisis is usually the wise policy, because, in most matters, it is more important that the applicable rule of law be settled than that it be settled right.”

When courts are seen to be messing with stare decisis, a lot of people can get their knickers in a bunch. Look at the kerfuffle over the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization that struck down Roe v. Wade and the constitutional protection for abortion, or (closer to my heart), what Loper Bright Enterprises v. Raimondo did to the Chevron doctrine, that bête noire of judicial purists and conservative deep state-hating pundits.

As a concept, stare decisis is hardly shocking. But sometimes being right becomes more important than being consistent. Were that not so, Plessy v. Ferguson and “separate but equal” would still be the law of the land, and laws limiting the number of hours in a work week would still be unconstitutional. Sometimes, rules with ancient roots that run deep get overturned. Times change, and with them, rules change, too.

Such was the case in California, which was among the first to completely and soundly reject the quaint common law notion that a landowner was responsible for artificial conditions of his property, but not the natural conditions. As the country became more settled, early tree liability cases began to nibble at the doctrine, perhaps because courts were offended that a property owner could let a tree rot and decay until it fell on a neighbor’s house (or worse yet, the neighbor), and yet not be liable because the tree was a “natural condition.” As the nation became less rural, the rule made less and less sense, until a California landslide swept it away.

Sprecher v. Adamson Companies, 30 Cal. 3d 358, 636 P.2d 1121 (1981). South Winter Mesa Associates, a joint venture between Adamson Companies and Century-Malibu, owns a 90-acre parcel of land in Malibu, California. The parcel is bounded on the north by the Pacific Coast Highway and on the south by Malibu Road. Across Malibu Road and opposite the parcel are a number of beachfront homes, including one owned by Peter Sprecher.

South Winter’s land contained part of an active landslide that extended seaward from the parcel for 1,700 feet along Malibu Road and beyond the boundaries of the property. Pete’s house sat within the toe of this slide. The landslide, which has been evident since the area was first developed in the early 1900s, was a natural condition of the land that has not been affected by any of South Winter’s activities on the 90-acre parcel.

In March 1978, heavy spring rains triggered a major movement of the slide which caused Pete’s home to spin up against the home of his neighbor, Gwendolyn Sexton. As a result, Gwen sued Pete, seeking to enjoin the encroachment of his home upon hers. Pete then sued Gwen, the County of Los Angeles and South Winter, seeking damages for harm done to his house by the landslide. He complained that South Winter had not done anything to correct or control the landslide condition.

South Winter moved for summary judgment, arguing primarily that a possessor of land has no duty to remedy a natural condition to prevent harm to property outside his premises. Pete countered that the common law rule of nonliability for a natural condition should be jettisoned because the rule is neither premised upon sound public policy nor in accord with modern principles of tort liability.

The trial court held that South Winter was not liable, and Pete appealed. Eventually, the issue reached the California Supreme Court.

Held: Rejecting the distinction between artificial and natural conditions, the California Supreme Court held that a possessor of land is liable to others when he is negligent in preventing a natural condition of his land from causing harm.

Under the common law, the major important limitation upon the responsibility of a possessor of land to those outside his premises concerned the natural condition of the land. While the possessor’s liability for harm caused by artificial conditions was determined in accord with ordinary principles of negligence, the common law gave the landowner an absolute immunity from liability for harm caused by conditions considered natural in origin. No matter how great the harm threatened to his neighbor, or to one passing by, and no matter how small the effort needed to eliminate it, a possessor of land had no duty to remedy conditions that were natural in origin.

The Court observed that over the 20th century, a progression of the law mirrored a general trend toward rejecting the common law distinction between natural and artificial conditions. Instead, the courts increasingly used ordinary negligence principles to determine a possessor’s liability for harm caused by a condition of the land. The earliest case to do so was a tree case in 1896, in which a New York court held a possessor of land was liable for damage caused when a decayed tree on her premises fell on her neighbor’s house during a storm. After observing that the defendant clearly would be liable for the fall of a dilapidated building, the court observed that it could “see no good reason why she should not be responsible for the fall of a decayed tree, which she allowed to remain on her premises… The tree was on her lot, and was her property. It was as much under her control as a pole or building in the same position would have been… A defendant had no more right to keep, maintain, or suffer to remain on her premises an unsound tree… than she would have had to keep a dilapidated and unsafe building in the same position.”

In more recent years, the California Supreme Court noted that thirteen states and the District of Columbia have begun applying ordinary negligence principles in determining a possessor’s liability for harm caused by a natural condition. All of the cases involved injury caused by fallen trees. However, the California Supreme Court said, the principle is not limited to trees: a possessor of land has a “duty of common prudence in maintaining his property, including trees thereon, in such a way as to prevent injury to his neighbor’s property.”

The California Supreme Court concluded that the national trend was moving toward jettisoning the common law rule in its entirety and replacing it with a single duty of reasonable care in the maintenance of property. Even the Restatement Second of Torts recognizes that a possessor of land may be subject to liability for harm caused not just by trees but by any natural condition of the land, drawing no distinction between landowners located in urban areas and the rural countryside. While some cases have held rural landowners have a lesser duty of inspection than do urban dwellers, others do not, while a compromise position taken by a few states holds that the rural or urban nature of the land is only one of several factors to be considered.

Historically, the consideration most frequently invoked to support the rule of nonliability for natural conditions simply embodied the principle that one should not be obligated to undertake affirmative conduct to aid or protect others. A natural condition of the land was, by definition (some argued), one which no human being had played a part in creating. Therefore, no basis for liability existed because a duty to exercise reasonable care could not arise out of possession alone.

Whatever the rule may once have been, the California Supremes said, it is now clear that a duty to exercise due care can arise out of possession alone. The duty to take affirmative action for the protection of individuals coming upon the land is grounded in the possession of the premises and the attendant right to control and manage the premises.

The historical justification for the rule of nonliability for natural conditions, the Court concluded,

has lost whatever validity it may once have had. In addition, adherence to the rule in California would produce an anomalous result. A possessor of land would owe a duty of care to protect trespassers, invitees and licensees, but not his neighbor, from harms threatened by a natural condition of the land… It is difficult to see why this court should support a rule which would allow a trespasser to bring an action in negligence that would be denied a neighbor, where both were standing on either side of the possessor’s boundary line and were both struck by a dead limb from his tree.

The distinction between artificial and natural conditions and the immunity from liability predicated on that distinction, the Court concluded, bore scant relationship to the factors that should determine whether immunity should be afforded a landowner for harm done by a natural condition of the land. “The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant and the consequence to the community of imposing a duty to exercise care have little, if any, relationship to the natural, as opposed to artificial, origin of the condition causing harm.”

– Tom Root

Case of the Day – Tuesday, April 28, 2026

Posted on April 28, 2026 by TLRoot tagged.

IF I OWE HIM, YOU OWE ME, AND SOMEONE ELSE PROBABLY OWES YOU…

One of the beauties of American tort law (if we’re even allowed to use that phrase, which is doubtful) is that if you’re a defendant, you often can daisy-chain as many other people or entities to share your pain as your creative lawyer can find.

The tragic death of young but substantial teenager Tyre Sampson at a cut-rate Florida amusement park provides a case in point. Tyre, only 14 years old but already a sought-after football lineman (at 6’2″ and 300 lbs) fell to his death from a “Free Fall” ride, billed as the world’s tallest free-standing drop tower. When the tower brakes engaged, Tyre – who exceeded the maximum size for the ride – slipped out of his seat and fell 100 feet.

Tire’s parents sued the park, which in turn will no doubt sue the owners of the ride (who lease the contraption to the park). They will sue the ride’s installers, who will sue the ride’s builders, who will sue the designers. At some point, Sir Isaac Newton may become a third-party defendant: if not for him, there’d be no gravity. It’s a tort lawyer’s dream: a daisy chain of defendants, all with deep pockets.

Another example arose several years ago when a mid-air explosion of a Southwest Airlines 737 engine killed one passenger and – but for some serious flying by an unflappable Navy fighter pilot turned airline captain – could have killed hundreds. Let’s say Joe Doaks, a passenger on board who had the scare of his life, sues Southwest for negligence in maintaining the airplane. Southwest could be both the defendant and a third-party plaintiff, in turn suing the maintenance company that inspected the engine last without finding a crack in a turbine blade. The maintenance company could then bring in the engine maker for selling a defective engine, and the engine maker could sue the company that made the blade for defective manufacture, and the blade maker could sue the metal supply company for selling a nickel-based high-performance alloy that did not meet specifications, and the metal supply company can, in turn, sue the company making the test equipment that gave faulty readings that the metal was within limits… Before you know it, Joe Doaks has a chain of six defendants, each pointing the finger at the next guy and claiming that any liability they may have is shared among all of them.

This is generally a good thing for the plaintiff, because the more defendants, the deeper the collective pocket from which to collect. But the daisy-chained defendant has to have a duty to the injured party before it is liable, and the lure of finding someone else with a checkbook to stand in the defendant’s dock with you can lead to some fairly strained interpretations of “duty.”

In today’s case, a landlord’s tree dropped a limb onto the heads of two of his tenants. They sued, complaining that the landlord company failed to fulfill its duty to maintain the tree. No argument there – of course it did. But the landlord, looking for someone to share its pain, went after the electric company. Dominion Virginia Power had an easement across the property, the landlord argued, and the defective tree stood within it. The power people, the landlord claimed, had a duty to keep the trees in the easement trimmed, and thus shared any liability the landlord had to the injured tenants.

Well, yes, the court said, there is a duty there, but there is also some fine print regarding the extent of that duty. And, as the lawyers like to say, the details are where the devil resides…

Vaughan v. S.L. Nusbaum Realty Co., Case No. CL15-5895-00/012016 (Virginia Circuit Ct., Nov. 30, 2016), Va. Cir. LEXIS 183. Travis Vaughan and Alexander Goldenberg were injured when the “wind picked up” and they were struck by a falling limb from a tree located at an apartment complex owned and managed by S.L. Nusbaum Realty Co. Travis and Alex sued Nusbaum, who in turn sued Dominion Virginia Power, the electric company. It seems the tree that dropped the limb was located on a utility easement held by Dominion, and Nusbaum argued Dominion had a duty to maintain the tree.

The easement granted Dominion “the right, privilege and easement of right of way, to construct, operate and maintain a pole line for the transmission and distribution of electricity,” and, with respect to the issue before the Court, “the right to trim, cut and keep clear all trees, limbs and undergrowth and other obstructions along the lines or adjacent thereto that may in any way endanger or interfere with the proper and efficient operation of the same.” Nusbaum argued that as holder of the easement, Dominion had the same rights and responsibilities that Nusbaum did, and had “the duty to maintain the easement, including by maintaining any trees growing on the easement.”

Dominion argued it owed no contractual duty to Travis and Alexander to maintain trees located within the easement.

Held: The Court held that Dominion had no duty toward Travis and Alex.

The trial court said the relevant question was whether the duty to maintain the easement right of way imposes a concomitant duty upon Dominion — as the owner of the dominant estate—to maintain all aspects of the tree.

The right to use an easement comes with a duty to maintain it in a manner consistent with the allowed use. Although Virginia courts have apparently not articulated the extent of a power company’s duty under an easement, at least one other jurisdiction has. In a case stemming from a property owner’s personal injury when his heel struck a metal shield on a guy wire supporting a pole bearing equipment of defendants, a New Jersey court held that, as owners of the dominant estate, “defendants were under an affirmative duty to make reasonable inspections of their easement upon plaintiff’s property and to use due care to keep the guy wires and metal shield in good repair.”

Here, the trial court said, the easement does not impose an affirmative duty on Dominion, as owner of the dominant estate, to tend to the tree beyond those actions necessary to maintain the easement in a manner consistent with the use allowed. Dominion has the duty to inspect the easement and make repairs as necessary, including trimming, cutting, and clearing trees, but only to the extent that such trees, or parts thereof, “endanger or interfere with the proper and efficient operation” of the “wires, poles, attachments, equipment and accessories.”

The court said Dominion nevertheless could be liable if Travis’s and Alex’s injuries were caused by its improper maintenance of the easement consistent with its use by, for example, failing to clear portions of the tree from the vicinity of power lines when necessary, trimming the tree in a way that the public was placed in danger, or compromising the health of the tree through improper trimming. Stated differently, the court said, Dominion “must take necessary actions to properly maintain the pole line and its accessories and, if Dominion exercises its right to ‘trim, cut and keep clear all trees, limbs and undergrowth and other obstructions along said lines or adjacent thereto that may in any way endanger or interfere with the proper and efficient operation of the same’ [which is what the easement specified], it must exercise reasonable care in doing so.”

The duty arises from the easement, so the complaint must allege facts to support a breach of that duty. It was not enough for the landlord to say the tree was on the easement and a limb fell to justify bringing the electric company into the lawsuit.

– Tom Root

And Now The News …

Posted on April 28, 2026 by TLRoot tagged.

Salem, Oregon, Statesman-Journal, April 27, 2026: Why Salem’s oldest street tree can’t be saved after all

Salem’s oldest street tree can’t be saved after all, city officials said April 27. On March 14, the city said it would do further testing on two historic Oregon white oaks, in a northeast Salem neighborhood, that had been slated for removal. City staff, as well as many in the neighborhood, had said they were heartbroken by the decision to remove the trees and hoped to find a way to save them. The city used sonic tomography, a non-invasive tool that uses sound waves to measure wood density, to evaluate wood strength in the lower stem of the tree, which has been infected with the Ganoderma applanatum fungus for several years. “A significant amount of compromised wood was confirmed in the lower stem on the northeast side of the trunk where there is an open cavity, a large basal wound, and where the Ganoderma was previously observed,” spokesman Jason Roberts told the Statesman Journal. “The tree has a high overall risk rating.” The 67-inch tree is estimated to be 400 years old. Ganoderma kills sapwood and causes white rot of both sapwood and heartwood in the trunks. Older, larger trees depend on both sapwood and heartwood for the overall stability of the tree…

Detroit, Michigan, Crain’s Detroit Business, April 27, 2026: Trees bring cities some unexpected benefits. Adding more isn’t always so simple.

Many Midwest cities struggle with a common set of problems: Attracting and retaining residents; increasing property values; helping businesses start, grow and thrive, and managing hazards exacerbated by climate change, to name just a few. Few solutions can address all of those, of course, but there’s an often overlooked strategy that can help mitigate many of them – and create an economic impact – with an investment of a couple of shovels and the cost of a sapling. The answer? Trees. Academic research has consistently shown that the denser and more mature the tree canopy — essentially, how much surface area the tops of trees cover — the greater the economic, health and population benefits. But decades of disinvestment — coupled with two huge waves of disease and pests — left cities in need of hundreds of thousands of trees to bring their canopies up to par. Addressing those gaps comes with its own set of challenges: it’s costly to buy trees, and trees have to compete for space with the realities of an urban environment, like sidewalks and buildings. Two Midwest cities — Detroit and Cleveland — are putting effort into increasing tree coverage to reap benefits that go far beyond aesthetics and the environment…

It’s no secret that China is particularly adept at building things. The world’s largest dam? In China. Largest high-speed rail network? That’d be China. Largest wind farm? China. Solar Array? Argentina. Really? Nope, it’s also China. Largest ancient landmark? You get the picture. Alongside all of that building, China has also been growing. Taking inspiration from that last infrastructure accolade, China began growing the Three-North Shelterbelt, or “The Great Green Wall,” in 1978 as an effort to combat soil erosion and decrease desert storms. The project, the country’s state-sponsored media announced, was finally complete as of last year. According to Reuters, China grew 116,000 square miles of trees, increasing the country’s total forest coverage from 10 percent in 1949 to roughly 25 percent in 2024. But a 2025 study published in the journal Earth’s Future shows that all those additional trees (roughly 78 billion since the early 80s, by some estimates) come with some unforeseen consequences for China’s water distribution. Scientists from Tianjin University, China Agricultural University in Beijing, and Utrecht University in the Netherlands found that between 2001 and 2020, increased vegetation reduced water resources in both the eastern monsoon region and the northwestern arid region. That’s a big deal, considering these areas make up roughly 74 percent of China’s total land area, according to Live Science…

Jezebel.com, April 25, 2026: Your Dumbest Friend Explains Tree Sex to You

Happy Arbor Day! As we mainline a heavy dose of touching grass into our veins this weekend, let us also gander at some trees and talk about (tree) sex. The other day, as I was sneezing my brains out as a result of my life’s belongings being coated in a thick layer of pollen, I came across a terrifying theory—“botanical sexism.” Great, I thought. Even the trees are sexist now. Turns out, trees aren’t sexist, just humans (phew!). Botanical sexism is the practice of planting male trees rather than female ones, adopted in urban planning based on the idea that male trees would produce fewer pesky fruits and flowers than those messy, obnoxious female trees. Allergist Tom Ogren theorized that this preference for pollen-producing male trees was to blame for our worsening allergy seasons. However, it’s generally agreed among scientists that our suffocating pollen count is driven by climate change. So you don’t have to punch your neighbor’s willow tree after all! But the more I dug into the theory, the more confused I got. What is a male or female tree? How do trees have sex? And do men ruin everything?

Wellsville, New York, Sun, April 24, 2026: A Golden Girl: Nothing so lovely as a Tree

I don’t want to linger on the trees that were so surreptitiously removed from Main Street a couple of weeks ago, but I do want to discuss trees, or the lack of them. Over the last decade or so trees have disappeared from our downtown landscape. I imagine that it is difficult to have trees on a downtown street. I imagine they wreak havoc with the sidewalks and depending on the kind of trees, the foliage may prove difficult to deal with especially when you consider drainage and clean up. But trees also contribute to the streetscape, and you can always have a public bonfire and then everyone can get rid of their leaves. I’m not sure of the decade, but sometime in the ‘60s or ‘70s there was an attempt to plant flowering trees, crab apple trees I believe, on Main Street and throughout the village. The idea was to carve out a niche or an identity, for the village, similar to the Lilac Festival in Rochester and the Dogwood Festival in Dansville, to draw tourists. For a while the streetscape bloomed with the bright pink blossoms, but over the years the small flowering trees disappeared leaving the landscape gray. Then the trend became concrete everywhere. You know the thought – “Pave Paradise, Put up a parking lot…”

Grand Rapids, Michigan, Press, April 24, 2026: How Grand Rapids grew its tree canopy to 37% and what it means for residents

Grand Rapids has been named a 2025 Tree City USA by the Arbor Day Foundation, marking the 28th consecutive year the city has earned the distinction for its commitment to planting, growing and maintaining trees. The city’s tree canopy now covers 37% of Grand Rapids, up from 34.6% when the city completed its first tree canopy study in 2008. The increase brings Grand Rapids closer to its goal of 40% tree cover, which was established in the 2012 Green Grand Rapids sustainability plan. “We’re excited to be recognized again for our trees,” said Nick Hitchcock, city forester. “With the help of neighbors, volunteers and community partners like Friends of Grand Rapids Parks, we’ve seen our tree canopy coverage increase to 37%. This recognition is a celebration of not just our trees, but our community as well. The city’s tree canopy provides ecosystem services valued at $371,791 annually, including removing air pollution, sequestering carbon and intercepting stormwater. The city’s street trees alone have stored over 46,000 tons of carbon, a service valued at nearly $8 million…”

New York City, The Gothamist, April 25, 2026: New NYC tree plan shines light on need for more shade

New York City is about to get more shade. City officials released a new plan this week to shroud 30% of the five boroughs in tree canopy by 2040. The city’s current tree canopy cover is is 23.4% — or about 45,000 acres, equal to the size of Brooklyn. Officials said the benefits of trees go beyond cool shade. More tree cover also mitigates flooding and increases habitat for wildlife. “New York has always been defined by the dreams we dare to build together. Today, we’re planting those dreams in the soil itself,” Mayor Zohran Mamdani said in a statement. “The Urban Forest Plan is a commitment that no matter your neighborhood, you deserve clean air, shade in the heat of summer, and streets that reflect the possibility of our great city.” New York City currently has around 7 million trees that absorb just 51,000 tons of carbon and a little more than 500 million gallons of stormwater runoff per year…

Wausau, Wisconsin, Pilot and Review, April 26, 2026: Wisconsin Yard & Garden: Native trees in landscape

With Earth Day and Arbor Day on the calendar this month, now is a perfect time for thinking about adding a native tree to your landscape. The list of choices is large. To help get you started, here are a few examples of Wisconsin native species to consider that may not be as well-known as trees typically found in landscapes throughout the state. Kentucky coffeetree (Gymnocladus dioica) has been increasing in popularity in recent years. Native to southern Wisconsin, but hardy to zone 4a, Kentucky coffeetree can be planted throughout the state. Male and female flowers appear on separate trees, with thick husked pods developing on female trees. Leaves are doubly-pinnate and compound, so they are quite large even though the individual leaflets are small. Twigs have an interesting stout appearance and scaly bark looks rustic, so these trees provide year-round interest in landscapes. Kentucky coffeetree tolerates adverse urban conditions. When thinking of oaks, white, bur, and red come to mind most often. Swamp white oak (Quercus bicolor) is also an excellent choice to consider. As the name implies, this oak will tolerate poorly drained soil but is adaptable to soils of many landscapes, including clay, and urban conditions. Attractive leathery leaves have shallow rounded lobes and feature contrasting dark green upper surface and much lighter lower surface (hence bicolor). Acorns attract wildlife. Swamp white oak is native to southern Wisconsin, but is hardy to zone 4a…

Los Angeles, California, LAist, April 23, 2026: As California debates Zone Zero, researchers want to know: Can trees protect homes from fire?

On a recent spring morning in Pacific Palisades, the clanging and hammering of construction filled the air. A small group of people gathered under a partially burnt Brisbane box tree shading the sidewalk on a street near the center of town. The group took measurements — the leafiness of its crown, the width of its trunk. They inspected its bark for fungus and noted any new growth sprouting. For more than a year, a group of researchers and students from UCLA, UC Davis, University of Florida and the U.S. Forest Service, alongside local volunteers and students, have collected data on more than 2,000 trees — about 600 in the Palisades and 1,500 in Altadena — to analyze how they may recover after the fires and their role in the fires’ spread. The question about the fires’ spread is key as California debates new regulations, called Zone Zero, near homes in high-risk fire areas. Their ongoing research is showing that in some cases, well-maintained vegetation may actually help buildings survive a fire…

Gahanna, Ohio, AEP, April 23, 2026: AEP Ohio AEP Ohio forestry team issues advice on tree planting to avoid power outages

The benefits of trees outside your home are numerous, whether you like the shade they provide, the ability to hang a tire swing or even just the way they look. However, they also have the potential to interfere with power lines and even underground lines as they grow. As spring arrives and residents plan their landscaping, AEP Ohio’s forestry team has issued some advice to consider when deciding the kind of tree you’re planting and where to avoid power outages. “A tree is a long-term commitment,” said Dale Hopkins, AEP Ohio forestry support manager, in a press release. “Planning before purchasing and planting a new tree can help you avoid unnecessary maintenance down the road and prevent power outages for you and your neighbors…”

ScienceX.com, April 23, 2026: These ants can strip cocoa bare, but one farm tree changes the whole battle

Cocoa cultivation in so-called agroforestry systems is widespread in the Peruvian Amazon rainforest. There, cocoa plants grow alongside other trees in the same area. The problem is that leaf cutter ants also like to build their nests there. Cocoa farmers often consider these insects pests because they cut off leaves, flowers and fruits, thereby reducing crop yields. Farmers, therefore, frequently use pesticides to control leaf cutter ants. A research team at Julius Maximilian University of Würzburg (JMU) has now investigated the impact of leaf cutter ants on cocoa cultivation in agroforests and how best to respond to it. The key finding: Ants are not necessarily harmful; they can also provide additional benefits to the cacao agroforest. What’s more, the damage they cause can be reduced using simple methods that also have a positive effect on biodiversity. Blanca Iváñez Ballesteros, postdoctoral researcher at the Department of Animal Ecology and Tropical Biology—Zoology III at JMU, was responsible for this study. The results are part of her dissertation work in the project EcoCacao led by Prof. Ingolf Steffan-Dewenter with colleagues from Göttingen, Vienna and Lima, and have been published in the Journal of Applied Ecology. “Leaf cutter ants are not just pests. As ‘ecosystem engineers,’ they significantly alter the soil structure and nutrient dynamics of their environment. For sustainable agriculture, it is therefore crucial to understand the trade-offs between the damage caused by leaf cutter ants and the ecological services they provide,” says the scientist, describing the background to her work…

Nashville, Tennessee, Tennessean, April 23, 2026: NES ramps up aggressive tree-trimming. Some Nashvillians aren’t happy

Nashville Electric Service has instituted a new tree-trimming policy in the wake of Winter Storm Fern, and some customers aren’t happy. You can see the signs in some of the trees dotting Nashville neighborhoods from Bellevue to Inglewood: In some cases, their branches have vanished nearly entirely on the side closest to power lines. Especially tall specimens can be seen sagging under the now lopsided weight, giving the intended effect of adding more space away from power lines at the expense of the affected trees now leaning back toward the homes they stand in front of. It’s a change that many asked for, though. As Nashville’s electrical infrastructure buckled in the aftermath of the historic storm, the level of scrutiny on NES heightened in turn…

Euro News, April 21, 2026: ‘Miracle tree’ removes 98% of microplastics from drinking water, outperforming chemical alternatives

A millenia-old purification technique could be the cure for Europe’s microplastic-riddled drinking water. In a recent study, seeds from the ‘miracle’ moringa tree were found to match or outperform their chemical counterpart in filtering out aged PVC microplastics – one of the most harmful plastic types for human health. The findings could pave the way for a greener alternative for treatment plants. Tiny plastic particles released from car tyres, paint, textiles and degraded plastic packaging have been building up in global water systems for decades, creating a silent but growing health risk. In 2024, the EU ramped up monitoring protocols for microplastics in drinking water. But last year, researchers warned that tiny particles, which are more likely to pass through the intestine into the blood and organs, could be slipping through the net…

Seattle, Washington, Times, April 22, 2026: Real estate agent who cut King County trees boasts of views in listing | The Seattle Times

The high-end real estate agent who cut more than 140 trees in a King County park last year has now cranked up the asking price of his home by $1.5 million, citing the “once-in-a-lifetime” mountain views it offers, court documents show. Publicly and in court filings, the agent, Vlad Popach, has said he needed to remove dozens of decades-old trees for the safety of his home and family. But privately he’s looking to cash in on the views created by chopping the trees out of King County’s Grand Ridge Park, county attorneys argue. There’s really no doubt that Popach, who lives with his family in Issaquah’s private Highlands neighborhood, hired a mystery company to chop, limb and top the 142 publicly owned trees. He’s admitted as much to The Seattle Times, other news outlets and in court filings. County officials last year estimated the cuttings caused millions in damage. The question now emerging is why. County attorneys sued Popach in civil court in June, seeking damages, and they expressed concern last month that he might try to avoid payment if he loses…

Science Daily, April 21, 2026: Scientists just captured trees glowing with electricity during storms

In June 2024, a group of Penn State meteorology and atmospheric science researchers set out on a road trip along the East Coast in a modified 2013 Toyota Sienna. The van was outfitted with a custom-built telescopic weather instrument extending from the roof. Their goal was to track down Florida’s near-daily summer thunderstorms and observe a phenomenon that had never been confirmed outside a laboratory. That phenomenon, known as corona discharge, involves tiny bursts of electricity forming at the tips of leaves. These faint electrical pulses can cause treetops to emit a subtle glow in the ultraviolet (UV) range. Scientists have suspected for more than 70 years that forests might produce these effects during storms due to unusual electric field activity, but direct evidence in nature had remained elusive…

NPR, April 22, 2026: From the Himalayas to Newt Gingrich, the ‘tree-huggers’ prevail

On a recent 80-degree day at Rock Creek Park, an urban national park in the heart of Washington D.C., a dozen children as young as four sank their hands into the creek mud, discovered crayfish hiding beneath rocks, and picked grass out of their hair. Brown, 55, runs ForestKids, a nature immersion program with the goal of helping kids connect to nature. But she’s been obsessed with environmentalism since the early 2000s when it was a “weird fringe thing.” “‘Oh my gosh, you’re a tree hugger. You’re probably one of those tree huggers,'” Brown recalled hearing from others. “It was meant as a bad word.” Now, she said, the word brings “pride.” Next to Brown, 9-year-old Orla McClennen wears a hat with palm trees and a Joshua Tree National Park T-shirt. She doesn’t know if she’s ever heard the word tree-hugger, but her favorite part of Brown’s program so far was walking across a “big, fat tree” to get to the other side of the creek…

Knoxville, Tennessee, WVLT-TV, April 20, 2026: Tree trimming is key to keeping the lights on, KUB says

Trees and overgrown vegetation are responsible for at least half of KUB’s power outages, according to the Knoxville Utilities Board, which says that’s why its tree trimming and vegetation management work runs year-round. Nick Bridgeman, a team lead in KUB’s vegetation management program, said KUB maintains a large system serving more than 220,000 electric customers and covering more than 5,000 miles of overhead distribution lines. “Overall, at least 50% of our outages are caused from vegetation,” Bridgeman said. “Vegetation management is a really important part of what we do here at KUB to make sure that we can provide safe and reliable services for our customers.” KUB said the biggest goals are safety and reliability—reducing the chance that limbs contact lines during day-to-day conditions or during storms…

Miami, Florida, WFOR-TV, April 20, 2026: Miami residents demand halt to tree removal permits as city defends process amid flooding fears

A growing group of Miami residents is urging city leaders to immediately pause tree removal permits, warning that widespread tree loss could worsen flooding and heat, while officials insist current policies remain intact and properly enforced. The push comes in a scathing letter signed by dozens of residents and sent Monday to Mayor Eileen Higgins, City Manager James Reyes and members of the Miami City Commission. The letter, organized by a member of Sierra Club Miami, calls for an immediate stop to certain permits until a committee of experts and stakeholders can weigh in on reforms. “Literally our trees are getting slaughtered,” said Sandy Moise, a Miami resident and Sierra Club Miami member. Moise and others argue the city is allowing too many trees to be cut down, raising concerns about environmental and quality-of-life impacts across neighborhoods. Experts say those concerns are not unfounded. “We feel the effects on heat,” said Chris Baraloto, associate director of Florida International University’s Institute of the Environment. “Now that it’s starting to rain again, we’re going to see the effects manifest themselves in stormwater…”

Discover Wildlife, April 19, 2026: It rains poison, blinds on contact – and its fruit could kill: Inside the ‘Tree of Death’

The nickname of this species – the ‘Tree of Death’ – tells you everything you need to know about its lethality. Native to the Caribbean, Florida, the Bahamas, and parts of Central and South America, the Manchineel can grow as tall as 15 metres, with every part of the tree containing strong toxins. Stand underneath its branches during rainfall and you can expect your skin to blister. Rub its sap in your eyes and temporary blindness is likely to ensue. It’s no surprise that we deemed it the most poisonous tree in the world. However, eat one of its small, apple-shaped fruits and the consequences will be even worse – in his journal, 18th-century explorer Nicholas Cresswell wrote: “They are rank poison. I am told that one apple is sufficient to kill 20 people…”

Washington, DC, PoPville.com, April 20, 2026: DDOT Started Spraying Ginkgo Trees Overnight!!

From DDOT: “The District Department of Transportation (DDOT) will begin the annual spraying of the female ginkgo street trees on Sunday, April 19, 2026. The spraying will occur overnight from 9:00 p.m. through 6:00 a.m., weather permitting. The annual spraying serves to reduce the formation of mature ginkgo fruit, which emits an offensive smell when it falls on sidewalks and roadways. DDOT will use the same spray it has used for the past 20 years, Shield-3EC 24(C)…

Tallahassee, Florida, WCTV, April 20, 2026: Risk of toppling trees increasing as months-long drought continues, Tallahassee arborist says

As an extreme drought continues throughout the Big Bend and South Georgia, a local arborist is warning that trees are feeling the stress. Mike Cross from Fielder Tree Service says this is the worst drought they’ve seen, and because of that, it’s important to be proactive to avoid a tree falling on your house or your car. He says that because the drought has lasted so long, trees are showing signs of stress, and they are essentially shutting down. He says trees don’t necessarily die overnight; it’s more of a slow decline, but since the drought has lasted several months, we’re right in the thick of it…

Syracuse, New York, Post-Standard, April 20, 2026: Volunteers plant 3,500 native trees to protect Skaneateles Lake

Thousands of brightly colored ribbons fluttered in the warm breeze blowing across an old farm field in Skaneateles on Saturday, marking spots where 3,500 saplings would soon take root. More than 160 volunteers planted eight native tree species, including River Birches, Swamp White Oaks, Red Maples, Sugar Maples, Silver Maples, Sycamores, White Oaks, and Tulip Poplars. “Planting native trees is one of the best ways to help clean up our rivers and lakes,” said Patrick Lynch, executive director of the Central New York Land Trust, a conservation nonprofit that organized the event…

Southern Farm Network, April 20, 2026: The beauty of the fringe tree in North Carolina landscapes

I can vividly recall the first time I ever laid eyes on a “Fringe Tree” (Chionanthus virginicus), also known as “Grandfather’s Beard.” I was driving to cover a NASCAR race at Charlotte Motor Speedway in May in the 1980s. (They bloom in April now.) The specimen was in full, glorious bloom in the front yard of a house somewhere on Highway 49 near the Uwharrie Mountains. I said, “Whoa, what is that?” I had an expert who had all the answers to our gardening questions, so I discussed it with my first WPTF Weekend Gardener co-host, Erv Evans. I described the magnificent flowers on this small tree or large shrub, and Erv knew immediately what I was talking about, of course. A perfect specimen cloaked in a mass of sinewy, creamy-white flowers is a sight to behold. They form a cloud of 4- to 8-inch-long panicles that resemble an old man’s beard. The more spectacular flowers are found on the male tree. There is an exceptional specimen in my neighborhood along my daily walking route, and I always get a kick out of seeing this showy bloom each spring…

San Francisco, California, Chronicle, April 14, 2026: Oakland council balks at nearly $1M fine to property owner who cut down 38 trees on Claremont Ave.

What began as a City Council hearing on a nearly $1 million fine for a man who city arborists said cut down protected trees on his Claremont Avenue property escalated into a heated debate about whether Oakland’s leaders would enforce their own laws. It ended without a decision — and the council will take it up again next month. The Tuesday hearing centered around Matthew Bernard and Lynn Warner, who city arborists say chopped down 38 mature trees without permits in 2021 and 2022 across their land, an adjacent city property and on neighbors’ lots. One arborist called it “the most egregious illegal tree removal case” in decades. Bernard, who was born in Nigeria and immigrated to the United States in 2001, said he and Warner wanted to build a future home for their family on the Oakland hills lot, and did “everything in their willpower” to respect the city’s laws. He said that he had acted on advice of an arborist to remove trees at risk of falling, or igniting during a wildfire. Bernard’s neighbors have also sued him over the trees that he cut on their property. The Oakland City Council was split — with some aligning with environmental advocates who felt the city needed to show it would not allow trees to be removed without consequences, and other council members expressing sympathy for a couple trying to navigate city permitting…

London, UK, BBC, April 13, 2026: Why are trees dying beside a major road and how can it be fixed?

National Highways is to trial a new way of planting trees alongside roads after admitting its “performance on tree planting has not been good enough”. Many thousands of trees have died since it planted 860,000 saplings between Cambridge and the A1, after completing the A14 upgrade in 2020. A further 165,000 trees and shrubs were planted between 2022 and 2023, and people nearby even took to planting their own trees along part of the road’s embankments. So what goes wrong after trees are planted – and can it be fixed?
National Highways. For decades, the A14 in Cambridgeshire was synonymous with slow-moving traffic, jack-knifed lorries and very long delays. That changed with the completion of a £1.5bn road improvement scheme, a 12-mile (19km) Cambridge to Huntingdon three-lane carriageway. About 270 hectares (670 acres) of habitat, including 40 native tree and shrub species, was planted as part of the project. In part, this was to mitigate for the removal of the many existing mature trees in the path of the re-routed road. “Trees are the soft estate along the highways and have multiple functions, including as a visual screen to hide it from surrounding landscape,” said Neil Davies, the chairman of the board of trustees at the Arboricultural Association, a charity which promotes awareness of tree care. “It can provide environmental screening, for noise for example, and it has a habitat and landscape value, including linking up with established habitats…”

London, UK, Guardian, April 14, 2026: ‘Nothing but tree skeletons’: record-breaking wildfires devastate US cattle country

In a normal year, the vast grasslands that roll across the American Great Plains would be starting to green. But at the center of the US, where most of the nation’s beef producers graze their herds, this spring brought fire instead of moisture, leaving more than a million acres black and barren. Multiple blazes raged across Nebraska, where the records for the annual acreage burned were obliterated in a single month. The state logged the largest blaze ever recorded when the Morrill fire cascaded across more than 642,000 acres (260,000 hectares) before it was contained in March. Fire is not a stranger to this region early in the year, when precipitation is low, grasses are dry and dormant, and strong winds howl through the open flats. While other parts of the American west face their biggest fire threats in summer and fall, grasslands are more primed to burn in the spring. In recent years, however, the risks have sharply risen, along with the size and impact of bigger blazes. “There is a changing wildfire dynamic in this region,” Dr Dirac Twidwell, a rangeland ecologist at the University of Nebraska, said, describing how a cycle of extreme conditions can create more catastrophes. Stronger summer storms seed the grasses that cure by winter. If there’s no protective snow cover, that browned vegetation ramps up fire risks – especially when the winds begin to blow…

New York City, The New Yorker, April 7, 2026: The Forest Service “Reorganizes” Under Trump

On a recent morning in central Vermont, where I live, it was raining, and the wood frogs had just begun to chorus. The sap run from the maple trees has started to dwindle as the branches begin to bud out. There is a timeless quality to a New England spring (or as timeless as anything can be in an age of rapid climate change), and part of that timelessness is the United States Forest Service, whose land boundaries I wander across most days on rambles through the woods. For more than a century, the Forest Service has been a fairly stable fact of life across vast swaths of the American landscape. Which is why last week, though in the big cities it was barely noticed amid the noisy horror of the war in the Middle East, there was much talk in rural America about the Trump Administration’s sweeping changes to—really, a gutting of—the Service, which operates under the purview of the Department of Agriculture. The Service’s regional headquarters will vanish, along with most of its research facilities and experimental forests—and also quite likely the sense of mission that has animated the agency for more than a century. The Forest Service controls a hundred and fifty-four national forests and twenty national grasslands—at a hundred and ninety-three million acres, that’s the second-largest land base, public or private, in the country, trailing only the Bureau of Land Management, which runs the nation’s federal rangelands. Sometimes the national forests are confused with the (much smaller) national-park system, which is understandable—often those parks butt up against the forests, and the uniforms of the two services look a little alike, and that’s before we’ve even considered the Fish and Wildlife Service. But, if you see people driving a minty-green pickup, they’re from the Forest Service, a job that implies a very particular history.The agency’s antecedents date to the nineteenth century, but it was at the beginning of the twentieth, under President Theodore Roosevelt, that it came into its own. Its first chief was Gifford Pinchot, a close friend of Roosevelt’s, who believed in protecting the country’s natural resources to help power its growth—he wanted there to be plenty of trees for the industrial needs of the country. “Unless we practice conservation, those who come after us will have to pay the price of misery, degradation, and failure for the progress and prosperity of our day,” he said. In his time, however, Pinchot’s biggest confrontation was with the forces of what might be called “preservation,” saving forests not for their industrial potential but for their intrinsic meaning and beauty…

Case of the Day – Monday, April 27, 2026

Posted on April 27, 2026 by TLRoot tagged.

THE LOG WAS TOO BIG

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

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

Pete Spano was a municipal employee, detailed to haul away debris left by a tree trimming company the village government had hired to trim trees along a street. A fellow municipal employee–using a village front-end loader–dropped a log on Spano, injuring him.

Quick, legal scholars–whose fault was it that Spano was hurt? Could it be the village worker whose ham-handed running of the loader had caused the log to fall on Spano? Could it be the village manager, who had let an unqualified worker operate some dangerous heavy equipment? Perhaps the Village itself, for not budgeting enough to buy a decent front-end loader or staff up the Street Department so that Spano had more help?

C’mon, you would-be lawyers! We need to be creative here. The real culpable party, according to Spano’s lawyers, was none of these. Instead, it was the tree-trimming company. Of course! It had cut the logs too large, so large that the front-end loader could not handle them easily.

This notion may seem puzzling to many… but not to a good plaintiff’s attorney. The back story here, of course, is that a patchwork of well-intended New York laws (and may God save us from well-intended laws) made it impossible for Spano to successfully sue his employer or, for that matter, his fellow workers. It wasn’t so much that anyone entertained the notion that the private tree trimmer, Northwood Tree Service, was negligent. No one really thought that. However, Northwood was the sole party at the scene that wasn’t immune to a lawsuit. Thus, it wasn’t just the deepest pocket… it was the only pocket.

Of course, Spano could also have sued the front-end loader manufacturer for making a machine that couldn’t safely pick up a big log, the chainsaw manufacturer for negligently making chainsaws that cut big pieces instead of small pieces, or even Starbucks for putting too much caffeine in the front-end loader operator’s latte. With lawyers this creative, the list could be endless.

The court thought so, too. It held that Northwood owed no duty to Mr. Spano simply because it had a contract with the Town. Even if it did, it was hired to cut down a tree, and that’s what it did. Spano’s attorney could see where the case was heading and tried to amend his way out of it, but the Court said that where the complaint was palpably meritless, and the amendment was insufficient to fix the problem, pulling the plug on the whole case was the only humane thing to do.

Spano v. Northwood Tree Care, Inc., 852 N.Y.S.2d 289, 48 A.D.3d 667 (N.Y.A.D. 2 Dept., 2008). Spano was injured while performing tree debris removal for his employer, the Town of Mount Pleasant, which contracted with Northwood Tree Care to cut down a tree. The Town provided its own employees to haul the logs away. When one of Spano’s coworkers attempted to pick up a particular log with a front-end loader, the log — which was too big for the bucket — fell on Spano’s ankle.

And how big was the log?

Spano said Northwood Tree Care’s employees negligently created unreasonably large and unmanageable logs for Town employees to haul away. He sued Northwood Tree Care, seeking to recover damages for injuries suffered as a result of the accident. The trial court granted summary judgment for Northwood Tree Care, and Spano appealed.

Held: The suit was properly dismissed. Northwood Tree Care established that it did not owe a duty of care to Spano by virtue of its contract with the Town, and in any event, the Town properly performed its obligations. The trial court also correctly denied Spano’s cross-motion for leave to amend the complaint. While leave to amend a complaint shall be freely given under the rules, the Court said leave may be denied where, as here, the proposed amendment was palpably insufficient or patently devoid of merit.

– Tom Root

Case of the Day – Friday, April 24, 2026

Posted on April 24, 2026 by TLRoot tagged.

THE WORTH OF A HUMAN LIFE

Tip O’Neill famously said that “all politics is local.” And he was right. We spent 15 years in the Washington, D.C., metro area, where what happens on Capitol Hill makes the local news. But the Nation’s Capital and all of its intrigue doesn’t begin to match the politics in a small town smack in the center of a small county in the Corn Belt.

When we would no longer “pay any price,” we beat feet out of town.

We had a municipal election a few years ago. The incumbent mayor and his challenger debated during the campaign, and the wannabe, a fresh face in politics, embarked on his usual riff about crime (which is not an especially serious problem around here). The local paper reported that the challenger asserted that

there should be no limits when it comes to achieving a safe city. ‘I’m not worried about budgets,’ he said, regarding the way he would address the drug epidemic.

Our hometown’s mayoral challenger is way too young to remember John Kennedy’s inaugural address in January 1961. JFK intoned that “we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.”

JFK wasn’t around to see the end game in Saigon when the North Vietnamese tanks rolled into town. Come to think of it, no Americans were around for it either, as they all had hightailed it out of town on the last chopper. Uncle Ho drove a stake into the Kennedy Doctrine’s heart that day. It turned out that no matter what the late President had said, we wouldn’t pay any price, wouldn’t meet any hardship, and so on. Guess what? There are limits to how much we’re willing to pay for anything.

Certainly not our hometown’s young mayoral hopeful. He doesn’t know that everything has a price point. He’ll give $10,000 extra to the police if that gets ten more drug dealers arrested. In fact, that sounds like a bargain. So how about $100,000 for 15 more? Or $1 million for 20 more? Or $10 million for 30 more? You get the idea – there comes a point when the price you’re paying for an incremental increase in city safety is just too much to justify for the benefit your extra money buys you. The neophyte’s inexperience shows: there are limits to what we town dwellers will pay for a safe city. There are always limits.

Is your PBJ sandwich worth the risk to some peanut-adverse kid somewhere? C’mon … let’s be socially responsible. Eat Vegemite instead.

All of which leads us to today’s case. A tree-related case may seem rather a prosaic illustration of this limiting principle, but the hard fact is that a dollar value on safety is set every day. People are always making demands on government or industry that are objectively unreasonable, but that they believe with all their hearts are absolutely necessary because of our own experiences.

It’s the old “cost of a human life” argument, as in, “How can you place a price tag on a human life?” We do, of course, all the time. If we didn’t balance lives against costs to society, we’d have no cars, airplanes, or even peanut butter. Think of the lives that would be saved! Without cars, over 34,000 lives would be saved annually in the U.S. alone. Hundreds of people a year die in aviation-related mishaps. And how about peanut butter? Is your guilty pleasure of peanut butter-banana sandwiches before bedtime worth the horrendous risk to countless children with peanut allergies? Tough policy questions, to be sure…

We have no better illustration of this than the now-derided COVID-19 lockdown. Some predicted 2.2 million people would die unless we “flattened the curve.” If we take that figure, then subtract the 1 million who actually died, we may have saved 1.2 million people (more or less). The total cost of the coronavirus shutdown alone – not including healthcare – was $7.6 trillion. Also a “more or less” figure. And just like that, we have paid $6.33 million (more or less) for every obese diabetic couch-potato life saved. But who can put a price on human life?

In today’s case, Mrs. Lacasto didn’t lose her life, but she was a mite inconvenienced (and a bit injured) in her run-in with gravity in beautiful Santa Barbara, California. A piece of city-owned sidewalk had been pushed up by the roots of a city-owned ficus tree. Mrs. Lacasto tripped on the 1-inch rise and injured herself.

In the inevitable lawsuit — this was California, after all — she argued that the City’s tree maintenance program was deficient, and if it hadn’t been so defective she wouldn’t have fallen. The deficient maintenance program meant that the City had “constructive notice” of the damaged sidewalk, and it thus owed her a lot of money for her fall. The defect? Why, she argued, Santa Barbara only inspected trees once every five years! Horrors! If it had inspected them more often, she complained, the defective sidewalk caused by the ficus tree would have been discovered.

The numbers tell the story: the City employed four tree trimmers, who had responsibility for maintaining some 32,000 city trees along some 500 miles of sidewalks. The trimmers trimmed 5,500 trees a year and tried to get to each tree in town once every five years. The Court didn’t use a calculator, but it reckoned that the cost of inspecting sidewalks and trees every two years, as Mrs. Lacasto thought would be prudent, would have been “an onerous burden” on the City.

What’s more, the Court wisely observed, even if the ficus tree had been inspected every two years, it was sheer speculation that sidewalk rise would have been found to be a dangerous condition two years before Mrs. Lacasto’s fall.

Of course, the City could just replace the 500 miles of concrete sidewalk with rubber. The taxpayers clearly wouldn’t mind shouldering the cost: after all, who can put a price on Mrs. Lacasto’s shins?

Lacasto v. City of Santa Barbara, Case No. 1188148, 2007 Cal. App. Unpub. LEXIS 8909, 2007 WL 3203036 (Cal.App., Nov. 1, 2007). On a sunny morning in September 2005, Mrs. Lacasto tripped on a rise in a sidewalk maintained by the City. The one-and-a-quarter-inch rise occurred at the expansion joint between two adjoining concrete panels. One foot to the south of the maximum rise, the elevation diminished to one inch. Mrs. Lacasto tripped at a point between the one-and-a-quarter-inch rise and the one-inch rise. Her toe caught on the sidewalk rise and she fell, breaking her left hip.

A search of the records of the City Division of Public Works showed that, before Lacasto’s trip and fall, the division had never received any complaints or information regarding the condition of the area of sidewalk in question. A search of the records of the City Risk Management Division also failed to disclose any reports, but the City’s Street Maintenance Manager said the sidewalk defect was a hazard and should have been repaired. Near the rise in the sidewalk, a ficus tree had been planted, and a city expert opined that the rise was caused by the tree root lifting the sidewalk. The lifting had also caused a crack in the sidewalk that ran perpendicular to the rise. Mrs. Lacasto’s expert said that ‘[r]aising of hardscape does not happen overnight but over a period of time …” The City admitted it “would have taken several years” for the tree root to grow to the point where it would cause a one and a quarter-inch rise in the sidewalk.

The only sidewalk inspection the City had was to charge all City employees to be on the lookout for hazards. No City employees were responsible for inspecting sidewalks for defects. The only way the City would know about a sidewalk hazard would be for a citizen or City employee to report it to the City. The City has over 500 miles of sidewalk area. About five years before Mrs. Lacasto’s fall, City tree trimmers performed maintenance on the ficus tree in question. The City employed four tree trimmers to maintain over 5,500 of the 32,000 City trees. The City’s current system for pruning trees was based on elapsed time, with every City street and park tree receiving some type of maintenance over five years. Mrs. Lacasto’s expert said the City’s trees should have been inspected at least every two years. The trial court found for the City on summary judgment. Mrs. Lacasto appealed.

Held: Mrs. Lacasto’s case was thrown out. She had based her complaint on the California Tort Claims Act, which provided that a public entity is liable for injury caused by a dangerous condition on its property if the entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. A public entity had constructive notice of a dangerous condition only if the plaintiff established that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

Mrs. Lacasto conceded that there was no evidence that the City had actual notice of the defective condition. Therefore, the City’s liability had to be predicated on constructive notice, which would be found to exist only that have existed for such a length of time and are of such a conspicuous character that a reasonable inspection would have disclosed them. In order to charge the city with constructive notice, Mrs. Lacasto had to show some element of notoriety to put the city authorities on notice as to the existence of the defect or condition and its dangerous character. An inch-and-a-half rise in the sidewalk, the Court said, simply wasn’t sufficiently conspicuous to put the city on constructive notice of the defect.

In view of the City’s more than five hundred miles of sidewalks and approximately 32,000 street and park trees, the Court said it would not have been reasonably practicable to impose such an onerous burden upon the City. Even if the ficus tree had been inspected every two years, as recommended by Mrs. Lacasto’s expert, the Court said it would be speculative whether the sidewalk rise constituted a dangerous condition two years before Mrs. Lacasto’s fall.

– Tom Root

Case of the Day – Thursday, April 23, 2026

Posted on April 23, 2026 by TLRoot tagged.

DIVING INTO THE SHALLOW END

The last snows of winter have melted by now, which does not explain the snowflakes I saw last weekend in Minneapolis. Still, at home the first four mowings of the grass are under my belt. Can Memorial Day and the official start of the summer swim season be far behind?

The advent of the swim season got me thinking about – what else? – liability. Nationally, there are about 800 spinal cord injuries a year from swimmers — mostly young people — diving into shallow water. The idea that you ought to check the depth of the water before diving in is as pellucid as Bahamian shallows. Yet diving accident victims and their families often litigate the issue anyway. Today’s case is an interesting application of the “open and obvious” doctrine.

The Koops, who were lakeside property owners, weren’t recreational users because their property was open only to invited guests, not the public. So they had no immunity under Ohio’s recreational user statute. As invitees, their guests were owed ordinary care by the Koops – which included a warning of any dangers that weren’t open and obvious. When one guest ran across the dock and dove into 18-inch water — rendering himself a quadriplegic — he sued the Koops for negligence. The Court ruled that the danger was open and obvious.

Not to be deterred, Galinari argued on appeal that he had been distracted by “attendant circumstances.” Not a bad argument: “attendant circumstances” can defeat the “open and obvious” doctrine. But such circumstances must divert the attention of the injured party, significantly enhance the danger of the defect, contribute to the injury, and be beyond the control of the injured party. Attendant circumstances in the past have included time of day, lack of familiarity with the route taken, lighting conditions, and ice accumulation. But here, the plaintiff could muster only that the water was inviting, that other people were swimming in the lake, and that there were no posted warnings. Not enough, the Court ruled, to excuse the young man from the simple precaution of checking water depth first.

Not all shallow water is so well labeled …

Galinari v. Koop, 2007-Ohio-4540, 2007 Ohio App. LEXIS 4509, 2007 WL 2482673 (Ct.App. Clermont Co., Ohio, Sept. 4, 2007). In a tragic July 4th accident, 21-year-old Nick Galinari dove off a dock into a shallow lake owned by Koop, severely injuring his spinal cord and rendering him a quadriplegic. Galinari was invited by his girlfriend, Kristin Bounds, to attend a family party hosted by Koops on their property.

The property included a small, man-made lake on which guests are permitted to swim, canoe, fish, and otherwise use for recreational purposes. On the shore of the lake, there was a ramp connected to a floating dock, all of which extended about 28 feet into the water. The water near the shoreline is quite shallow, fluctuating between approximately ankle-deep and knee-deep. Galinari and his girlfriend pitched a tent and then mingled with guests at the party for about 45 minutes. Galinari, Kristin, and Kristin’s sister then decided to go swimming. Kristin went into the lake while Galinari changed clothes. He then headed down the stairs to the ramp and floating dock to enter the water. He saw Kristin in the water near the end of the dock, but could not recall later if she was standing or swimming. Without stopping to check the depth of the water at the end of the dock, Galinari jogged to the end of the dock and attempted a “shallow dive” to the right of Kristin. The water where he dove was about 18 inches deep. He struck the bottom of the lake, severely injuring his spinal cord. There was no sign on the property, nor did anyone give any verbal warnings, about diving off the dock due to the depth of the water.

Galinari sued the property owners for negligence, alleging they failed to warn him about a dangerous condition on their property. The owners moved for summary judgment, arguing that they were under no duty to warn Galinari of something as open and obvious as the shallow lake. The trial court granted the Koops summary judgment, agreeing that the shallow water was an open and obvious condition and that they therefore had no duty to warn Galinari of a danger he could have discovered through ordinary inspection. Galinari appealed.

Held: Galinari lost. He contended that despite the known dangers involved in diving, the question of the Koops’ negligence in failing to warn him of the shallow water required jury evaluation. He argued that he was a social guest on Koops’ property and that they breached a duty of care in failing to warn him of the dangers of diving off of the dock into their lake.

The Court disagreed, holding that in order to establish a cause of action for negligence, Galinari had to first show the existence of a duty. A social host owes his invited guest the duty to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises. This includes warning the guest of any condition of the premises known to the host and which a person of ordinary prudence and foresight in the position of the host should reasonably consider dangerous if the host has reason to believe that the guest does not know and will not discover the dangerous condition.

However, a property owner owes no duty to warn invitees of dangers that are open and obvious. The rationale for this “open and obvious” doctrine is that the nature of the hazard serves as its own warning, and invitees then have a corresponding duty to take reasonable precautions to avoid dangers that are patent or obvious. In determining whether a condition is open and obvious, the determinative question is whether it is discoverable or discernible by one acting with ordinary care under the circumstances. This determination is an objective one: a dangerous condition need not be observed by the claimant to be an open-and-obvious condition under the law.

Here, the Court held, it is clear that the depth of water at the end of the Koops’ dock was a discoverable condition. Kristin was standing in the water near the end of the dock when Galinari dove in. The water on that day was at or below her knees. The lake bottom was clearly visible from the floating dock where Galinari dove. Galinari presented no evidence justifying any reason to believe that the water may have been deeper where he dove. He hadn’t been told he could dive from the dock and he hadn’t seen anyone dive from that dock before him. Kristin was the only person he recalled seeing in the water as he jogged forward along the ramp and dove off of the dock. Based on this evidence, the Court said, the water was a discoverable condition by someone exercising reasonable care under the circumstances. Sadly, the Court said, if Galinari had merely looked at the water at the end of the dock or stepped into the water to determine its depth, he would have easily determined that the lake was too shallow for diving. However, he took no precautions before diving into the lake.

But Galinari argued that despite the open and obvious danger created by the shallow water, the doctrine of attendant circumstances precluded summary judgment. Attendant circumstances are an exception to the open and obvious doctrine and refer to distractions that contribute to an injury by diverting the attention of the injured party, thus reducing the degree of care an ordinary person would exercise at the time. An attendant circumstance must divert the attention of the injured party, significantly enhance the danger of the defect, contribute to the injury, and be beyond the control of the injured party. The phrase refers to all facts relating to the event, including circumstances such as the time of day, lack of familiarity with the route taken, lighting conditions, and the accumulation of ice. Galinari argued that the “inviting nature of the water,” “other water activity,” and the “lack of warnings” were circumstances contributing to his belief that the water was safe for diving.

The Court noted that while the nature of the cool water may have been inviting on a hot Fourth of July, it would not consider that to be an “attendant circumstance” distracting Galinari from exercising ordinary care. Certainly, the Court said, inviting water did not prevent Galinari from discovering its depth. Nor did the existence of other docks and slides, the length of the dock from which he dove, and the presence of people and canoes in the water create a visual appearance that diving from the end of the dock was safe. It was clear from this testimony that the “attendant circumstances” that Galinari asserted were not distracting him from exercising due care because he did not even notice them. These circumstances in no way prevented him from exercising the ordinary amount of care or led him to believe that the water was safe for diving.

– Tom Root

Case of the Day – Wednesday, April 22, 2026

Posted on April 22, 2026 by TLRoot tagged.

DOG BITES MAN

A little neighbor law today: Dog bites are big business in the United States. They happen all the time, which is why “Dog Bites Man” and its obverse are the archetypical predictable or unpredictable newspaper headlines. Man’s best friend sinks canine fretwork into a human over 3.5 million times a year. Insurance payouts for dog bites exceed $1 billion a year (or, by comparison, 10 million barrels of oil at $100 a barrel). Some dog attacks can be fatal. Many more are just plain ugly.

Today’s case is one of those ugly ones, a sweet little 3-year-old girl attacked without provocation by her cousin’s pit bull. Our focus today is on the denouement, as the Delaware court apportions the financial blame for the accident. Not that it matters much – the defendants didn’t bother to put on a case, which suggests that neither little Destiny nor her mother will ever collect a dime.

Still, it’s a reminder that (1) just about every state regulates the liability a dog owner has for the bites inflicted by Fido, and most of those statutes impose liability without any proof of negligence; (2) permitting a default judgment to be entered against you is a very bad idea; and (3) the concept of “joint and several” liability means that a plaintiff can collect it equally from several defendants, or all from one and none from the other.

Campbell v. Robinson, 2007 Del. Super. LEXIS 563, 2007 WL 1765558 (Del.Super.Ct., June 19, 2007). Young Destiny Campbell was attacked by a dog kept by Frances and Turquoise Robinson. The attack caused severe injuries, including the removal of Destiny’s right ear and a significant portion of her scalp, and created long-term physical and mental health consequences. Her mother, Alicia Campbell, experienced emotional distress after witnessing the attack.

Alicia sued on behalf of her daughter, alleging that, as the dog’s owner, Turquoise was liable under Del. Code Ann. Title 16, § 3053F, which imposes liability upon owners for injuries caused by their dogs. Additionally, she claimed that Turquoise was negligent in maintaining a dog she knew to be vicious and in failing to warn those on the premises of the dog’s vicious nature and that Frances Robinson was liable for housing and maintaining a dog known to be vicious and dangerous, for failure to warn, and for failure to protect those who entered the premises.

The Robinsons apparently decided to let sleeping dogs lie, and thus they failed to answer the complaint. The trial court granted default judgment against both defendants and set a hearing to consider damages. The Robinsons showed up for that one but did not testify. That probably wasn’t such a good idea, because the trial court entered a judgment of $750,000 for compensatory damages against Turquoise Robinson, an award that no doubt left Turquoise feeling blue.

Based on the fact that the plaintiff alleged a violation of the dog bite statute, the trial court reasoned that Frances Robinson could not be liable to Destiny Campbell because she didn’t own the dog. The trial court apportioned $20,000 damages apiece against Turquoise and Frances for emotional distress caused to Alicia Campbell.

Alicia appealed, complaining that the trial court should also have held Frances liable for $750,000.

Held: The Court agreed that the $750,000 must be apportioned equally between the Robinsons. Delaware has long recognized that “when the negligent acts of two or more persons concur in producing a single indivisible injury, such persons are jointly and severally liable, though there was no common duty, common design, or concerted action.” The joint and several liability of two codefendants, the Court said, entitled a plaintiff to seek recovery from either or both of the defendants, provided that total recovery does not exceed the full amount of damages. At the election of the plaintiff, either defendant may be held individually liable for the entire judgment.

A default judgment constitutes a final judgment that provides a determination of the merits of a case, and — the Court noted — a defaulting party admits all of the allegations contained in a complaint. Here, the Court said, its entry of default judgment established that both Robinsons were joint tortfeasors and were jointly and severally liable for all damages arising from both of the claims contained in the Plaintiffs’ complaint. The allegations in the complaint supported joint and several liability, charging wanton and negligent acts by the Robinsons that, together, proximately caused harm to Destiny and her mother in a manner not “divisible” or separately attributable to either defendant.

The Court held that the fact that Count I of the complaint was labeled “Count I-Violation of 16 Del.C. §3053F” does not permit Frances to evade joint and several liability to Destiny Campbell. While she was not the dog’s owner and was not liable under the dog-bite statute, Count I nevertheless established negligent and wanton conduct unrelated to the dog-bite statute and made Frances equally liable.

– Tom Root