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

And Now The News …

Posted on February 17, 2026 by TLRoot tagged.

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…

Central Florida Ag News, February 12, 2026: Citrus Growers Advised to Hold Off on Tree Recovery Process

The freeze event that hit Florida at the end of January and the beginning of February has left the agriculture industry reeling, including the citrus industry. While many growers may be chomping at the bit to jump into recovery mode, the official word from the experts at the University of Florida Institute of Food and Agricultural Sciences (UF/IFAS) is for citrus growers to wait. While the numbers being circulated say that 8 to 10 percent of the state’s citrus may be destroyed or severely damaged, UF/IFAS is asking Florida citrus growers and those in other sectors of the agricultural industry to take the ‘Post-Disaster Assessment of the Agricultural Impacts of Winter Freeze Events (2026)’ survey to get more accurate data. While it may seem like the sooner we get to recovery actions for citrus trees, the better they will fare, the reality is that the process is not so cut and dry. In a virtual question-and-answer session hosted by the UF/IFAS Statewide Citrus Team before the storm, assistant professor Flavia Zambon, who works at the Indian River Research and Education Center, shared that there is too much of winter left to go to attempt recovery efforts for citrus trees…

Alamosa, Colorado, Citizen, February 12, 2026: It’s been dry, so water your trees

Colorado State Forest Service is out with a reminder this week that trees need watering. The warm winter and absence of snow mean you should probably pull out the garden hose to give trees some moisture. Just remember to disconnect the hose when you’re done. “Making sure your trees receive adequate water throughout the winter and before irrigation is turned on for the year is necessary in Colorado, so they survive into the growing season,” says Carrie Tomlinson, urban and community forestry manager for the Colorado State Forest Service. “The moisture ideally comes from snow, but when it’s dry, we need to water the trees ourselves.” Alamosa reached 62 degrees on Feb. 9 to set a new high for the date. February overall is averaging 54 degrees so far this year. The most recent U.S. Drought Monitor map indicates that much of Colorado is experiencing some level of drought. Trees in cities, towns and neighborhoods throughout our state are dormant now, but require occasional watering during dry winters to remain in top health, Colorado State Forest Service notes in an alert to Coloradans…

Live Science, February 11, 2026: China has planted so many trees around the Taklamakan Desert that it’s turned this ‘biological void’ into a carbon sink

Mass tree planting in China is turning one of the world’s largest and driest deserts into a carbon sink, meaning it absorbs more carbon from the atmosphere than it emits, new research reveals. The Taklamakan Desert (also spelled Taklimakan or Takla Makan) is slightly larger than Montana, stretching across about 130,000 square miles (337,000 square kilometers). It is encircled by high mountains, which block moist air from reaching the desert for most of the year, creating extremely arid conditions that are too harsh for most plants. However, over the past few decades, China has sown a forest around the Taklamakan’s edges, and a new study suggests this approach is beginning to bear fruit…

Houston, Texas, Rice University, February 12, 2026: With 1 million trees planted, Houston nonprofit charts expansion to combat canopy loss

Trees For Houston celebrated its 1 millionth tree planted last week, a milestone for the four-decade-old nonprofit. Now, it’s charting a path to the next million — and in much less time. Trees For Houston leaders said this week they’re ramping up efforts to help cover and cool neighborhoods across the metro area, aiming to combat development that continues to threaten the region’s tree canopy. The next phase of the organization will require rethinking policy, deepening community partnerships and executing a long-term vision to keep pace with Houston’s expected growth, Executive Director Barry Ward said. Trees For Houston has dramatically scaled up its operations over the past several years, with the annual rate of trees planted rising from about 20,000 to more than 90,000 in the 2024-25 season. “Planting a tree is kind of like building a house in a microcosm,” Ward said. “It takes planning, consensus-building, follow-up and maintenance. At the rate we’re going, we’ll plant the next million in about 14 or 15 years, at a sustainable level of 70,000 to 75,000 trees a year. The challenge is turning that into 150,000 trees a year and changing expectations…”

Los Angeles, California, KCBS-TV, February 11, 2026: Downtown Los Angeles tree vandal sentenced to 2 years in prison

A 45-year-old man was sentenced to two years in prison for using a chainsaw to cut down trees in the downtown Los Angeles area last year. Samuel Patrick Groft pleaded no contest to nine felony counts of vandalism and two misdemeanor counts of vandalism at his Los Angeles County Superior Court hearing on Wednesday. The charges involve 13 trees that were cut between April 13 and April 19, including one that had a limb chopped off. Felled trees lying in the road and walkways left many in the DTLA community baffled and outraged as to who and why anyone would want to go out of their way to chop the trees down. Los Angeles Police Department investigators homed in on the suspect, a man caught on surveillance footage wearing all black and riding a BMX-style bike. Police identified the suspect as Groft, who was arrested on April 22, in the same clothing, same bicycle, and with a chainsaw in his possession at a nearby park encampment. They had said earlier that he has a criminal record and is homeless. Authorities have estimated that there was nearly $350,000 in damage…

New York City, The New Your Times, February 11, 2026: Tree Lovers in the South Grieve Ice Storm’s Toll

Robin Sasseville’s vintage blue cottage and wooded yard stood out amid the tide of development in Nashville. She had carefully transplanted daffodils from yards of neighboring homes before they were torn down, planted young trees and kept watch over a towering hackberry as it outlasted others and became the largest tree on the block. Then the winter storm late last month brought sheets of frozen rain and days of bitter cold. The mulberry tree, just big enough to start bearing fruit, peeled. It is still too early to know whether the hackberry, limbs collapsed over her roof, will survive its wounds. “Trees are just one of those generational type things you could always count on,” said Ms. Sasseville, 42, pausing between clipping branches. Now, she added, they are “just one more thing that’s going to be gone…”

Phys.org, February 11, 2026: Planting tree belts on wet farmland comes with an overlooked trade-off

A research team has conducted a study to examine how shelterbelts influence bird species diversity and composition in an agricultural wetland landscape on the western coast of central Japan. They determined that shelterbelts, trees planted to protect the land from wind in farmland are not automatically beneficial for bird diversity. Their research is published in the Journal of Environmental Management. Many agri-environmental policies promote planting trees and hedgerows in farmland to enhance biodiversity. These woody features, called shelterbelts, are widely assumed to be beneficial. However, most of the evidence supporting their benefits comes from croplands and grasslands in Europe and North America. Much less is known about how these shelterbelts affect wet-farmed landscapes, such as rice paddies, that are common across Asia and support wildlife dependent on wetland habitats, which are now declining globally. The central question of our study is, ‘Do shelterbelts and other woody linear features benefit all farmland birds equally in agricultural wetland landscapes, or do they create trade-offs by disadvantaging species that depend on open habitats?'” said corresponding author Masumi Hisano, assistant professor at Hiroshima University’s Graduate School of Advanced Science and Engineering…

Martha Stewart, February 9, 2026: 9 Evergreen Trees to Never Plant in Your Yard, According to an Arborist and Horticulturist

Evergreen trees are a beautiful addition to any landscape, with many varieties providing interest even on the coldest days of winter. But like any plant, there are a number of species you should avoid planting in your yard. Some evergreens are invasive and difficult to remove once established. If left to spread, they can take essential nutrients from other desirable plants growing in your landscape. Additionally, some evergreen trees contain toxic leaves or fruit that can be dangerous to pets, humans, and wildlife. To ensure you’re choosing the right varieties for your landscape, we spoke to an arborist and horticulturist who shared the evergreen trees you should never plant in your yard. Redwoods (Sequoia sempervirens) are one of the largest and most impressive tree species in the world. “This species can grow to over 300 feet tall and live a couple millennia,” says Eric North, program manager of urban forestry and ISA-certified arborist at Arbor Day Foundation. “The sheer size of the species makes it difficult to imagine how it would even fit in most yards. Given the size and longevity of the tree, I would not recommend planting this species in a yard.” For a smaller variety, consider dawn redwood (Metasequoia glyptostroboides), a deciduous conifer that is similar in appearance…

Milwaukee, Wisconsin, WTMJ-TV, February 9, 2026: Tree removal underway for Plymouth Reliability Project amid strong community opposition

A major power infrastructure project in Plymouth continues to move forward despite strong opposition from local landowners, with tree removal now underway on private properties. I’ve been covering the Plymouth Reliability Project for over a year and a half, as it has divided the community. The initiative aims to bring more reliable power to the area but requires installing power lines across private property, causing disruptions to farms and homes. JoAnne Friedman has been one of the most active community members providing updates about the project through the TMJ4-run Facebook group, Let’s Talk Sheboygan County – Neighborhood News. Her family is among those directly affected by the construction…

Nashville, Tennessee, WSMV-TV, February 9, 2026: Ice storm causes fatal crack in 100-year-old oak tree at Nashville botanical garden

Cheekwood, the 55-acre botanical garden and art museum in Nashville, announced Monday that one of its ancient oak trees will have to be removed after it was left devastated by the ice storm. “Despite initially appearing intact after the ice storm, a significant crack was discovered in one of the 100-year-old oaks flanking the Mansion at Cheekwood,” the 1930s estate said on Facebook. “Arborists from The Davey Tree Expert Company have determined that the oak cannot be saved and will have to be removed.” On January 30, the estate had said that this oak, as well as another in front of the mansion, remained intact after the storm, serving as “symbols of strength as our community recovers together…”

New Haven, Connecticut, Yale Climate Connection, February 9, 2026: A familiar tree turned up at a shockingly high elevation

In 2024, Hugh Safford, an ecologist at the University of California, Davis, went backpacking in the Sierra Nevada. On Mount Kaweah, at about 12,000 feet, he stopped to take in the view. He saw lodgepole and foxtail pines. Safford: “And then I saw something else, and I thought, ‘Whoa, wait a minute, there’s no way.’ And I walked over, and it was a Jeffrey pine.” In the Sierra Nevada, Jeffrey pines typically grow at elevations from 6,000 to 9,000 feet. But as the climate warms, scientists expect they’ll be able to survive at higher elevations. It’s too soon to know if Safford’s discovery is part of that trend. But he’s since found multiple Jeffrey pines above 12,000 feet. The seeds were likely carried there by a bird called the Clark’s nutcracker. Safford says in the past, the seeds would probably have failed to germinate. But as temperatures rise, seeds stashed at higher elevations may have a greater chance to sprout. The trees Safford found have no cones, so they will not reproduce…

In April 2025, a scientific study went viral online for a particularly wild claim. A forest of Norway spruce trees (Picea abies) in the Dolomites of northern Italy appeared to rapidly synchronize their cellular-level electrical signals—known as electromes—in the hours leading up to a partial solar eclipse in October 2022. If true, the discovery by the Italian Institute of Technology represented a possibly major development in understanding how plants communicate with one another. Despite many critics’ skepticism, headlines describing a “forest-wide phenomenon” of talking trees spread quickly across the internet. Now, one team of scientists believes they have a far more plausible explanation for the supposedly cosmic event in the Dolomite mountains. In short, the spruce trees were charged up with electricity from a recent thunderstorm. The evidence is laid out in a study recently published in the journal Trends in Plant Science—and the paper’s lead investigator isn’t mincing words about it, either…

Tacoma, Washington, News Tribune, February 8, 2026: 900-year-old Pierce County tree may be cut down for new semi-truck parking lot

The city of Lakewood is considering approving permits that would allow a landowner to cut down an oak tree that is at least 900 years old to make way for a semi-truck parking lot. Birds could be heard chirping in the tree’s enormous branches on Wednesday afternoon when The News Tribune visited the site in the industrial Woodbrook neighborhood. The 3.8-acre vacant lot was riddled with stumps. Some time between 2023 and 2024 the property owner razed 70 trees at 7319 146th St. SW without authorization, public records show. The city of Lakewood fined the owner $1,130,724 for the “malicious cutting,” but that fine was reduced to $346,920, according to a letter dated Jan. 5. According to a Jan. 16 city memo, the Emerson Lake Business Park has proposed extending a truck-and-trailer parking lot in association with an existing lot in the Industrial Business Park. Applicant Jason Hubbell and landowner Jane Yin, as well as representatives with Emerson Lake Business Park, did not respond to The News Tribune’s requests for comment. Tax records indicate the property has an assessed value of $1.6 million as of 2025…

Naples, Florida, News, February 6, 2026: Is my Florida palm tree dead after freezing temps? What to do

After freezing temperatures that not only broke record lows over the weekend but lasted for several days, Florida residents are looking at their yards and wondering, “now what?” Especially after another cold front that sent temps dropping across the state Friday, Feb. 6. If you were looking at all the brown palm fronds and wondering if your tree is dead, here’s what you should know and what you should do. Is my palm trees dead if all the fronds are brown? Not necessarily, but be patient and don’t do anything for a few weeks, just in case more freezing temperatures hit the state. “Foliar necrosis is typical of cold damage but these fronds provide some insulation to the apical meristem, which is the growing point of palm trees,” according to Dr. Mica McMillan, University of Florida, Institute of Food and Agricultural Sciences, via email Feb. 5. “Once there is no threat of another freeze/cold temperatures, and (if) the fronds are completely dead, remove these fronds. “If all of the fronds are dead, then the palm will probably not survive…”

Marthastewart.com, February 7, 2026: Can You Legally Trim a Neighbor’s Tree Roots in Your Yard? What to Know Before You Cut

The large, majestic tree in your neighbor’s yard may not be on your property, but its roots might be. In fact, the root system of a mature tree is often two to four times the diameter of the tree’s crown, which means those expansive roots are quite likely taking up residence on your side of the property line. This can create a tricky situation if those roots are causing havoc around your home’s foundation or otherwise disrupting your landscaping. But are you allowed to cut the roots of a neighbor’s tree? And will it harm the tree? Ahead, our experts get to the root of the matter. Can You Trim a Neighbor’s Tree Roots on Your Property? There is no one-size-fits-all answer to this question. From a legal perspective, the answer depends on your location. States have varying laws and regulations, and these can vary even down to the county or city level. “State law and even local codes may prevent removal of roots to a certain degree, so it’s important to review your local laws to determine if there are any regulations on trimming the roots,” says real estate attorney Gilbert Morales…

Wausau, Wisconsin, Pilot & Review, February 8, 2026: Wisconsin Yard & Garden: Dormant tree pruning guidelines

Now that February has arrived and weather conditions moderate across Wisconsin, gardeners can consider venturing outside for the task of dormant pruning of trees. Bare trees this time of year make it easy to see what issues can be corrected via pruning. While individual trees may vary in specific pruning needs, some general guidelines ensure success. Start by removing damaged or broken branches. Always cut back to a side branch or lateral twig, rather than leaving a stub. Make clean cuts using the proper tool for the size of branch that needs to be removed, choosing from pruning shears, loppers or pruning saws. Avoid flush cuts against the trunk. Instead, allow the collar region where branches meet trunks to remain, as wounds will be smaller and create callus, or “heal” better…

New York City, Post, February 4, 2026: Goldman Sachs president John Waldron clashes with Martha’s Vineyard officials in tree-chopping fracas

The president of Goldman Sachs has roused the ire of local officials on Martha’s Vineyard after he allegedly flouted a town order and chopped down 19 trees that were blocking views at his lavish waterfront vacation home, The Post has learned. John Waldron — the Wall Street giant’s No. 2 executive who is seen as the likely successor to CEO David Solomon — sparked a fracas last spring when the alleged violation was discovered on their sprawling four-acre estate near Katama Bay, the quaint maritime enclave where Steven Spielberg filmed his 1975 blockbuster “Jaws.” The 56-year-old Waldron and his wife, Amanda, bought the vacant Edgartown lot in 2020 for over $11 million. They built a four-bedroom summer home two years later on the Massachusetts island getaway for the East Coast elite; the spread is now valued at more than $30 million. But last spring, local officials discovered that the deep-pocketed investment banker had apparently chopped down 19 cedars and pitch pines — some of them 60 years old and as much as 60 feet high — that were blocking the mansion’s water view, according to filings lodged with the Edgartown conservation commission…

Nashville, Tennessee, WKRN-TV, February 5, 2026: Nashville homeowner says he lost thousands to tree removal company after ice storm

After last week’s ice storm, the damage across Forest Hills and nearby neighborhoods is easy to see: split trees, sagging limbs, yards left exposed. What is harder to spot, state officials say, is the risk that follows close behind. The Tennessee Attorney General’s Office issued a consumer alert this week warning homeowners about tree removal scams targeting storm-damaged areas. Complaints have increased about door-to-door crews asking for cash, offering immediate cleanup, and then failing to deliver any work. For homeowners eager to clear dangerous trees, the pressure to act can be intense. One Nashville homeowner told News 2 he paid more than $6,000 to a company operating under the name Certified Tree Care LLC for tree removal services that were never performed. The homeowner said repeated attempts to reach the company went unanswered…

Live Science, February 3, 2026: ‘Nitrogen fixing’ trees could help tropical forests bounce back, research suggests

An extra helping of nitrogen can double the growth of tropical trees in a recovering forest, vastly boosting the amount of carbon dioxide (CO2) they can absorb for a decade, according to a new study. Researchers found that adding a nitrogen fertilizer to the soil in the youngest forests — those that had been pastures less than a year ago — increased their tree biomass by 95% compared with a non-fertilized control group. Ten-year-old forests also bounced back with the nitrogen treatment, showing a 48% increase in growth compared with the control group. “We all rely on tropical forests to stabilize our climate,” study co-author and principal investigator Sarah Batterman, an associate professor at the University of Leeds and ecosystem ecologist at the Cary Institute of Ecosystem Studies, told Live Science. “They store about half of forest carbon and sequester about 20% of our carbon emissions. But there’s huge uncertainty in whether tropical forests will continue to take up CO2 or will become a source of carbon into the atmosphere in the future. One of the key uncertainties is the role of nutrients in supporting more carbon sequestration and recovery from disturbance…”

Grayling, Michigan, mLive.com, February 5, 2026: A tree that lived up to its name: ‘The Monarch’ ruled over an old growth forest for generations

For generations, this was the biggest and most-hugged tree in the largest stand of old growth pine trees remaining in Michigan’s Lower Peninsula. “The Monarch” presided as the crowned sovereign of the 49-acre Old Growth Forest at Hartwick Pines State Park for years. It was 325 years old when it died in 1996. This Eastern white pine was – and continues to be – a destination. Today, the Monarch’s stump remains a regal presence. It stands about 71 feet at marker 6 of the 1.25-mile Old Growth Forest Trail. Footprints in the snow show that visitors still approach for a hug, a photo or a closer look at this huge specimen. It’s been that way for decades. “I have pictures of my mom hugging this tree with my grandparents when she was 10,” said Craig Kasmer, park interpreter, “and pictures of me and my sister hugging it when I was 8. Hundreds of thousands of people have their picture taken hugging the Monarch…”

The Conversation, February 3, 2026: Victoria’s mountain ash forests naturally thin their trees. So why do it with machines?

There has been much global discussion about the best ways to manage Earth’s forests in an era of climate change and more frequent bushfires. Some foresters and forest managers support and recommend large-scale industrial thinning of forests, where a proportion of the trees are removed (thinned) with machines to increase the size of the remaining trees. Thinning is commonly used in timber plantations, as it accelerates the development of timber trees. In its new forest plan, the Victorian government has funded a “healthy forests” program. This will likely entail reducing the number of trees in the forest and increasing the space between trees. This plan could lead to extensive mechanical thinning in the state’s forests. Large-scale mechanical thinning has already been used in native forests in western Victoria. Plans for mechanical thinning of forests raises important questions…

Memphis, Tennessee, WMC-TV, February 4, 2026: Tree trimming & removal scams to watch out for

The Tennessee Attorney General’s Office urges citizens to use caution when selecting a business to provide tree trimming or removal services after recent ice storm. The Tennessee Attorney General’s Office offers tips for citizens in search of tree services: • Verify if the contractor is properly licensed in Tennessee by visiting verify.tn.gov; • Get reference from people you trust and look up the review on the business; • Ask for proof of insurance that covers tree services; • Take your time and get multiple written estimates and research each company; • Governor Lee’s executive orders do not provide contractors or other professionals with the appropriate insurance. Red flags to look out for: • Door-to-door sales; • High-pressure sales tactics; • Demand of full payment upfront; • Insistence on cash-only payment; and • Refusal to set out terms in writing…

North Carolina State University College of Natural Resources, February 4, 2026: Elm Zigzag Sawfly: Tiny Invader Poses Growing Threat to Tree Health

For much of the 19th and early 20th centuries, American elms were more than just trees. They were defining features of the nation’s streetscapes with their tall, arching branches creating shaded tunnels that lined city streets and small-town avenues. Today, however, these iconic trees are far less common. Dutch elm disease decimated much of the population, and a new threat has emerged: the elm zigzag sawfly. This small, invasive pest is spreading across North America, feeding on elm leaves and adding a new layer of stress to already vulnerable trees. The damage caused by elm zigzag sawfly larvae is distinctive. As they feed, they leave behind the zigzag patterns that give the insect its name. While infestations primarily stress the trees, severe outbreaks can strip leaves, weaken elms and sometimes cause dieback. Scientists are still studying the long-term impacts of this pest. Efforts to restore elm populations have led to the development of disease-resistant varieties designed to withstand Dutch elm disease. These new elms offer hope for the species, but the arrival of the elm zigzag sawfly complicates restoration efforts, affecting not only elms but also alternative species such as the Japanese zelkova…

Fairfax, Virginia, FFXNow, February 3, 2026: New agreement aims to protect both trees and power lines along W&OD Trail

After months of negotiations and pressure from both elected officials and community members, Dominion Energy and NOVA Parks have settled on a new path forward for managing trees near power lines along the Washington & Old Dominion (W&OD) Railroad Regional Park. Dominion and the regional park authority, which owns and manages the 45-mile-long W&OD Trail, have reached an agreement governing vegetation management activities that, among other provisions, requires the utility to provide advanced notice of any major maintenance work and to plant native species in affected areas when possible. “We sincerely appreciate NOVA Parks’ partnership on this important effort and their dedication to preserving the W&OD Park,” Dominion Energy Senior Vice President of Electric Transmission Joe Woomer said in a press release. “By working together, we are balancing the safety and reliability of the grid with the long-term stewardship of this cherished resource. That’s a win-win for our customers and communities.” NOVA Parks Executive Director Justin Wilson, who assumed the leadership role last October, agreed that the new memorandum of understanding “reflects a shared commitment” by both parties “to protect both the health of our community and the natural resources that define this region…”

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

Case of the Day – Thursday, February 12, 2026

Posted on February 12, 2026 by TLRoot tagged.

SECRET AGENT MAN

I have written from time to time about recreational user statutes – state laws that grant immunity to landowners who make their lands available without charge to the public for recreational purposes. To encourage landowners to do so, the law exempts them from liability for unsafe conditions on the land.

The statutes vary from state to state, but the principle is generally the same: to help forestall “the continual shrinkage of the public’s access to recreational land in the ever more populated modern world.”

Sometimes, the best-intended laws have strange consequences. Today’s case is a perfect example. Conference Point Center is a venue on Lake Geneva, Wisconsin, available for religious retreats, camps and conferences. The public may wander the wooded paths and enjoy the lake view at no charge.

Conference Point had some trees badly in need of trimming or removal, so it hired Creekside Tree Service to do the work. When Jane Westmas and her son, Jason, came walking along a path and rounded a blind corner, a badly decayed limb being removed by Creekside fell, killing Jane and seriously injuring Jason.

Conference Point was immune from liability because it was shielded by the Wisconsin recreational immunity statute, Wis. Stat. § 895.52. Creekside argued that although no one knew it, it was really acting as Conference Point’s agent in removing the trees, so it was immune as well. Sort of a secret agent…

A secret agent? The idea returned me to the thrilling days of my boyhood, when I longed to live the mystery-, intrigue- and action-packed lives of Patrick McGoohan and the Robert Vaughn/David McCallum team from U.N.C.L.E.

I have gone on at length before about the difference between an independent contractor and an employee, and how owners want to be sure that tree contractors fall on the independent contractor side of the line. Among other things, an owner is not liable for the negligence of an independent contractor in most cases, so Harry and Harriet Homeowner are better off if Tommy Treetopper drops a tree on the neighbor’s car. But being an independent contractor can be a double-edged sword. Under Wisconsin law, if a landowner is immune, so are the landowner’s employees, officers, directors, and agents. Clearly, an independent contractor is the obverse of an employee. But is it an agent?

The answer to that question – whether Creekside was Conference Point’s agent or not – would decide whether Jane’s estate could even sue for negligence. Whether there was actual negligence or not was an issue for another day.

Westmas v. Creekside Tree Service, Inc., 2018 WI 12 (Supreme Ct. Wisconsin, February 7, 2018). Jane Westmas was killed when a tree branch cut by Creekside Tree Service, Inc., fell on her while she and her adult son were walking on a public path through the property of Conference Point Center. Conference Point had contracted with Creekside to trim and remove trees from its property. Jane’s husband, John Westmas, and her son, Jason Westmas, sued Creekside and its insurer, Selective Insurance Company of South Carolina.

Creekside moved for summary judgment on the ground that the recreational immunity statute, Wis. Stat. § 895.52 (2013-14), barred claims against it. Creekside argued it was an agent of Conference Point, or in the alternative, an occupier that qualified as a statutory owner for immunity purposes.

The circuit court agreed and threw out the case. The court of appeals reversed.

Creekside appealed to the Wisconsin Supreme Court.

Held: Creekside was not Conference Point’s agent, and thus was not immune from suit. Generally, owners of property, under Wis. Stat. § 895.52, do not owe a duty of care to keep their properties safe for entry or recreational use. In fact, not only are owners immune, but their employees, directors, officers, agents and “occupiers” of the land are protected as well.

Creekside claimed that it was Conference Point’s agent. To determine whether this was so for the tree-cutting that caused the injury, the Court said, the focus had to be on the level of control that Conference Point had the right to exert over the tree-cutting task that caused the injury. Neither the contract between Conference Point nor any evidence in the record suggested that Creekside had any special, fiduciary duty toward Conference Point.

An agent has a fiduciary relationship with his principal, a consensual relationship in which the agent voluntarily places the principal’s interests before his own. Likewise, where a principal (such as Conference Point) has the right to control the acts of a contractor (such as Creekside) performed within the scope of the agency, an agency relationship is more likely to exist. When an independent contractor has no fiduciary obligations to and is not subject to control by the principal, the court ruled, no agency relationship has been formed. The Court concluded that “an agent is one who acts on behalf of and is subject to reasonably precise control by the principal for the tasks the person performs within the scope of the agency.”

Here, Conference Point neither controlled nor attempted to control the conduct of Creekside’s employees. Control over how trees would be trimmed or removed was retained by Creekside, especially (and crucially) the tree removal occurring at the time of the accident. Therefore, Creekside was an independent contractor rather than an agent and was not covered by the recreational immunity statute.

Creekside still had time for one more play, a “Hail Mary.” It claimed that it was an “occupier” of the Conference Point property and thus entitled to immunity. The Court said the definition of “occupy” in the context of recreational immunity is “to take and hold possession.” The purpose of the recreational immunity statute is to encourage landowners to open land for public use, and, thus, defining a party as an occupier subject to the statute’s protection should advance “the policy which underlies the statute.”

Here, the property was already open for public use, and defining Creekside as an “occupier” would do nothing to advance that. Rather, Creekside’s presence on the property was “mere use” and did not approach “a degree of permanence,” nor did it have any effect on whether Conference Point’s property would be open to the public for recreational purposes. In the few days it was on the property, Creekside moved “from temporary location to temporary location for the limited purpose of trimming trees as needed to satisfy its contract with Conference Point. Creekside was “not responsible for opening up the land to the public,” and indeed had no authority to do so.

– Tom Root

Case of the Day – Wednesday, February 11, 2026

Posted on February 11, 2026 by TLRoot tagged.

A MEDIOCRE SAMARITAN

One of the most popular parables in the New Testament was one that Jesus told in answer to a disciple’s question, “Who is my brother?” The tale of the Good Samaritan (and mind you, the Samaritans and Jews mixed like Bad Bunny fans and Kid Rock supporters), who found a Jewish man beaten by robbers and left for dead, is taught to countless Sunday School students. The term has even entered the lexicon. Many states have what are known as “Good Samaritan” statutes, laws that prevent a rescuer who has voluntarily helped a victim in distress from being successfully sued for wrongdoing.

Some states have gone further, passing “duty to assist” laws that require people to assist crime victims or those in distress where special circumstances are present.

In today’s case, a woman checked into a hotel. Her husband spoke to her by phone several times during the early evening but then was unable to reach her by cellphone or room phone. He finally called the hotel, and the front desk agreed to send a maintenance worker to check on her. Alas, the maintenance man was unskilled at this kind of welfare check. He opened the room door, saw the room was dark, called out, got no answer, and concluded no one was there.

When the husband drove some distance to the hotel and entered the room hours later, he found his wife on the floor, having suffered a brain aneurysm. Quicker treatment would have led to a much easier and better recovery.

What happens when a person has no legal duty to come to the aid of another, but does so anyway? Does the existence of a duty matter? The trial court thought it did, and threw out Mrs. O’Malley’s claim. The appellate court, however, found that duty did not matter as much as voluntariness.

O’Malley v. Hospitality Staffing Solutions, Case No. G054724 (Ct.App. California, Jan. 31, 2018), 2018 Cal. App. LEXIS 83. A woman checked into a hotel room in the early evening. She did not answer her husband’s calls for several hours. He suspected that she may have been injured. The husband called the hotel, and the front desk sent maintenance worker Ramos to check the room. Ramos reported that no one was there. Hours later, the husband went to the hotel room and found his wife lying on the floor. She had suffered a brain aneurysm.

The couple sued the hotel and Ramos’ employer (a staffing agency) for negligence. The agency filed a motion for summary judgment, arguing that it owed no legal duty to the couple. The trial court granted the motion and the couple appealed (the hotel itself was not a party to the appeal).

Held: The case could proceed to trial. The Court of Appeals held that maintenance worker Ramos’ argument that he had no duty to Mrs. O’Malley that would require him to check the room was correct but irrelevant. The general rule is that a person who has not created a peril is not liable for failing to take action to protect another unless the person has some relationship that gives rise to a duty to act. However, one who undertakes to aid another is under a duty to exercise due care in acting and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking.

For Mrs. O’Malley to make a claim of “negligent undertaking,” she had to show that: (1) the maintenance man agreed to render services to her; (2) the services rendered were of a kind he should have recognized as necessary for her protection; (3) he failed to exercise reasonable care in the performance of his undertaking; (4) his failure to exercise reasonable care resulted in harm to Mrs. O’Malley; and (5) his carelessness increased the risk of harm.

While under negligence, a legal duty of care gives rise to an obligation to act, under the negligent undertaking theory, acting where not obligated to act gives rise to a legal duty. Here, the court said, there were disputed facts regarding precisely what maintenance worker Ramos may have undertaken to do. The clerk at the front desk said that she told Ramos “to knock on Mrs. O’Malley’s room . . . and if she did not answer the door, to open the door and look in and see if she was in there.” Ramos said the clerk had told him simply “to go check on her, to go to her room and see if she’s there.”

Those conversations and Ramos’ knowledge that Mrs. O’s husband was worried she might be injured or sick were enough to permit the inference that Ramos may have understood the apparent urgency of the situation. The risk that Mrs. O’Malley may have been lying incapacitated somewhere in the hotel room (beyond the threshold of the front door) may have been reasonably foreseeable. “Therefore,” the appellate court said, “the scope of Ramos’ duty may have been more than simply opening the door and peering inside what Ramos claimed was a dark room.”

The appellate court said that “a reasonable trier of fact might infer that Ramos assumed a duty to check on whether Mrs. O’Malley was in her hotel room, and if she was there, why she was not answering the phone. If Ramos had such a duty, the scope of his duty would depend on the nature of the harm that was foreseeable. That question must be resolved at trial.

– Tom Root

Case of the Day – Tuesday, February 10, 2026

Posted on February 10, 2026 by TLRoot tagged.

ROADBLOCKS

When we were kids, we watched Broderick Crawford in that black-and-white police classic “Highway Patrol.” Every week, the full-figured, squinty-eyed Crawford — as highway patrol chief Dan Matthews — would pursue the bad guys in his finned Plymouth police coupe interceptor, usually catching the malefactors after setting up roadblocks all over California and barking “10-4” into his mic several times.

We loved that show. But Dan Matthews and his troopers had nothing on the political subdivisions in today’s case. When Mr. Bright’s car was crushed by a tree limb while he was driving down a road in the Village of Great Neck Estates, he got himself a lawyer and sued the town and the county. They immediately set up roadblocks worthy of the best 50s-era cop show.

The case seemed pretty straightforward. The plaintiffs argued that the county and village had had notice that the tree was defective. That hardly matters, the defendants retorted, because you, Mr. Bright, never gave us written notice that the tree was defective. The Administrative Code of Nassau County requires that you do so. As for your passenger, who also sued, she had not shown that she had suffered a serious injury, as required by the state’s insurance law. Not very bright, Mr. Bright, the defendants argued smarmily.

Fortunately, the plaintiff was Bright enough. The appellate court made short work of the county’s motion. The county’s prior-notice requirement, it ruled, related to physical deficiencies in roads and bridges, obvious problems that nonetheless might not be known to county officials. If such a requirement were applied to the trees alongside the road, there might as well be no duty imposed on an owner to inspect trees to begin with. Motorists would have had to pick the tree likely to fall on them and write to the county about it before it fell. Lots of luck with that.

Besides, while a gaping pothole in the road is obvious to passing motorists, the same can’t be said for a diseased tree, which is not especially susceptible to drive-by inspections.

As for the state insurance law, the requirement that a passenger prove serious injuries is intended to cut down on suits against other drivers. This case wasn’t about a county employee being reckless behind the wheel, but instead, the case was a simple one of premises liability. The County owned the highway and the tree next to it; the tree was defective. Voila, a lawsuit.

The county’s lawyers set up roadblocks that would put the cops to shame …

So the Court cleared the first set of roadblocks for Plaintiff Bright. So, this is Broderick Crawford, saying, “See you in court.”

Bright v. Village of Great Neck Estates, 863 N.Y.S.2d 752, 54 A.D.3d 704 (N.Y.A.D. 2 Dept., 2008). Mr. Bright suffered personal injuries when a tree limb fell on the car in which he was traveling in the Village of Great Neck Estates. Bright and his passenger sued, alleging that the accident was proximately caused by Nassau County’s negligence in failing to remove a dead or diseased tree.

The County moved for a summary judgment dismissing the complaint on the grounds that Bright had not complied with the prior written notice requirement set forth in § 12-4.0(e) of the Administrative Code of Nassau County and that the County lacked both actual and constructive notice of the purported hazard. The County also sought to dismiss the complaint by Bright’s passenger on the ground that she did not sustain a serious injury within the meaning of Insurance Law §5102(d). The trial court denied the County’s motion for summary judgment.

After Mr. Bright’s car got crushed, the county tried to do the same to his lawsuit …

Held: Denial of the summary judgment motion was proper. The Court observed that prior written notice statutes are intended to apply to actual physical defects in the surface of a street, highway, or bridge of a kind that do not immediately come to the attention of the municipal officials unless they are given actual notice. Here, the Court held, the defect was no more obvious to the motorist than it was to the county, and probably much less so. The prior written notice statute was held not to apply to trees.

Furthermore, the Court said, the County failed to establish that it lacked actual and constructive notice of the hazard tree alleged to exist in this case.

Finally, the Court said, Mr. Bright’s passenger was not required to establish that she suffered a serious injury because she did not allege the County was negligent in the use or operation of the car (which is what the statute addresses). Instead, the allegations against the County related to premises liability. The County doesn’t qualify as a covered person within the meaning of the Insurance Law, which was written to stop the flood of staged car accident lawsuits clogging New York courts.

– Tom Root