Case of the Day – Monday, March 9, 2026

Posted on March 9, 2026 by TLRoot tagged.

WE’VE GOT YOUR BACK

We’re not really sure what happened here, only what one neighbor said happened, and what the other denied. But that’s all right, because today’s case is not about who cut down whose trees, but instead whether an insurance company had to step into the dispute to defend Shelly Albert when neighbor Henri Baccouche said she done him wrong.

Henri said Shelly trespassed on his property, built a fence across some of his land, and severely damaged nine olive trees in the process. So his complaint was what we call trespass to trees. Shelly argued that she was obligated to trim the trees because of fire regulations; she had been trimming them for years without Henri complaining, and the trees were boundary trees anyway, so she had a right to trim them.

We all know what can happen when we lose a lawsuit. But the pain in the wallet begins way before that, with the cost of attorneys, experts, filing fees and litigation expenses. That’s a good reason for insurance. Shelley had some, a homeowner’s policy bought from Mid-Century Insurance Company (so named, perhaps, because the middle of the last century may have been the last time the company ever paid a claim).

We’re just kidding, of course. Mid-Century couldn’t wait to start paying for lawyers and depositions and settlements and the like, all on Shelley’s behalf.

Wait. We’re kidding about that, too. Shelley notified Mid-Century as soon as she was sued. She demanded Mid-Century mount a defense for her, but Mid-C said “no dice.” The insurance policy covered accidental occurrences, the Company said, and Shelley, by her own admission, had deliberately hacked up the olive trees.

Shelley was outraged. She fumed that Henri’s “entire complaint is false [and] outrageous… the trespass claim is ridiculous… in those boundary trees were enclosed by me, prior to any survey being done, based on a good faith belief that property encompassing the trees was mine… no intentional tort will lie.” She contended Mid-Century’s decision to deny her claim was “clearly error.”

Shelley’s insurance policy covered her from injury due to accidents. Shelley’s problem, of course, was that she said the accident was that the trees might really be Henri’s and not shared, and that she and her guys might have trimmed more than they were entitled to. But they did not mean to. Fact is, however, the “accident” had to be acidental conduct, not the unintended accidental result of conduct. If Shelley had run over the trees with a bulldozer while she was digging a hole for a pool, that would be an accident. But “accident” is like “intent” in trespass. You don’t have to intend to walk onto someone else’s land. You just have to intend to step where you step. If that land belongs to someone else – whether you knew it or not – you’ve trespassed.

Shelley intended to prune the trees. It was no accident, regardless of whether she was right in believing she could do so. Thus, the insurance company could not possibly be liable, and it did not have to defend her.

So Shelley lost big (and spent a lot on legal fees) before ever squaring off against Henri. Lesson? It might make good reading some evening (when nothing good is streaming on Netflix) to read your homeowner’s insurance policy. Sometimes, it can be scarier than a slasher movie.

Albert v. Mid-Century Insurance Co., 236 Cal.App.4th 1281 (Ct.App. 2nd Dist., 2015). Shelley Albert had a homeowners insurance policy with Mid-Century Insurance Co., which covered “property damage resulting from an occurrence,” including paying the costs of defense “against any suit seeking damages covered under this section…” The policy defined an “occurrence” as “an accident, including exposure to conditions, which occurs during the policy period, and which results in… property damage… during the policy period,” but specifically excluded damages resulting from “an intentional act by or at the direction of the insured.”

Oh, what peace of mind Shelley must have had! At least until she was sued by her neighbor, Henri Baccouche, for damage Shelley was alleged to have caused to his property when she erected an encroaching fence and pruned nine mature olive trees on his property. Shelley called on Mid-Century to provide a defense, but the insurance carrier refused, saying it was not liable under any stretch of the policy. Mid-Century said Henri’s claims “do not meet the definition of occurrence resulting in bodily injury or property damage as defined by your policy,” because protection against Henri’s claims was barred by the policy’s exemption for intentional acts.

Shelley sued Mid-Century, claiming breach of contract and breach of the implied covenant of good faith and fair dealing. The defendant filed a motion for summary judgment. The trial court granted judgment to Mid-Century, holding that Shelley’s conduct in cutting Henri’s olive trees was intentionally undertaken, and there was no evidence whatsoever that the trees were injured in some accident.

Shelley appealed.

Held: Mid-Century had no duty to defend Shelley. The policy was quite clear that it covered property damage resulting from an “occurrence,” and an “occurrence” was an accident. “Accident” in the coverage clause of a liability policy refers to the conduct of the insured for which liability is sought to be imposed on the insured, the Court said. An intentional act is not an “accident” within the plain meaning of the word.

The Court said that an accident “is never present when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.” For example, if a driver intentionally speeds and, as a result, negligently hits another car, speeding would be an intentional act. However, the act directly responsible for the injury – hitting the other car – was not intended by the driver and was fortuitous. Accordingly, the occurrence resulting in injury would be deemed an accident.

Shelley deliberately hired a contractor to trim the trees, but she argued that the excessive cutting was not an intended consequence and should be deemed an accident. Specifically, she maintains that the excessive cutting could have resulted from “miscalculation by the independent contractors, or it could have been as a result of a mishap with a motor vehicle… or truck… used in the tree trimming process, or by falling ladders, malfunctioning chainsaws or any number of other instrumentalities. All of these were possible ‘accidents’ causing the alleged excessive cutting.”

Nonsense, the Court said. “It is completely irrelevant that the plaintiff did not intend to damage the trees, because she intended for them to be pruned. Moreover, it is undisputed that the contractor intended to cut the trees, and absolutely no facts exist, in the complaint or otherwise, indicating that some unforeseen accident (such as a slip of the chainsaw) caused the damage to the trees.” It was always Shelley’s position that the trees had not been damaged or pruned excessively (and therefore were not subject to an accident), and that they had been cut in accordance with the City’s brush clearance ordinance. The Court ruled that “an insured may not trigger the duty to defend by speculating about extraneous ‘facts’ regarding potential liability or ways in which the third party claimant might amend its complaint at some future date.”

Even with the most charitable view of the underlying events, the Court said, the trimming of the trees was no accident.

– Tom Root

And Now The News …

Posted on March 9, 2026 by TLRoot tagged.

Nashville, Tennessee, WSMV-TV, March 8, 2026: Urban Forest Strike Team assesses tree damage following January ice storm

Nashville leaders called in the Urban Forest Strike team to assess damage to trees in the city following January’s ice storm. The team conducted assessments in Davidson County to determine the extent of damage to Nashville’s urban forest. The outreach leader said the data the team collected will help city leaders determine how to address the damage, support recovery efforts and improve Nashville’s response to future storms. The information will also support Nashville application for FEMA recovery funding. “Nashville Metro is going to look at the data that we’ve collected. And they’re going to have folks that are out here making those… doing management on the trees. So, in some cases, they’ve been marked to be removed if the damage is too severe and the tree is not likely to recover. And then in some cases where the damage is less severe, the trees will be pruned and then they’ll continue to recover just growing as they are,” said Megan Carpenter with the Urban Forest Strike Team…

Salem, Oregon, Statesman-Journal, March 6, 2026: Is it legal to trim branches from your neighbor’s tree in Oregon?

In Oregon, if your neighbor’s tree branches extend over your property line, you may be wondering if it’s legal to cut them. State law permits it in some cases, but there are parameters around what you can and cannot do to your neighbor’s trees. Can you cut your neighbor’s tree branches if they are in your yard in Oregon? The short answer is yes. Common law says that you are legally allowed to cut your neighbor’s tree branches if they are protruding onto your property. “Legally, you have the right to prune branches and limbs that extend past the property line,” said arborist Brandon Gallagher Watson in a guide for the City of Portland.line for portland.gov. “However, the law only allows tree trimming and tree cutting up to the property line.” Additional limitations to the law say that you cannot trespass on your neighbor’s property to trim the branches, you cannot trim beyond the property line, and you cannot damage the health of the tree, according to Urban Arbor Care in Eugene…

Bogota, Columbia, ColombiaOne, March 7, 2026: Lightning Strikes Help Panama’s Almendro Tree Grow Stronger

In Panama’s tropical forests, the towering almendro tree appears to gain strength rather than suffer damage from frequent lightning strikes. Growing up to 180 feet (55 meters) tall, the tree is often struck, yet it not only survives but may even benefit from these high-energy impacts. According to a recent study published in New Phytologist, lightning may play a role in the tree’s longevity and growth. Between 2014 and 2019, researchers monitored lightning activity in Panama’s Barro Colorado Island forest. Using cameras and sensors, they pinpointed 94 lightning strikes during this period. Each time a strike occurred, they examined the affected trees and followed up later to assess their recovery. All nine almendro trees struck by lightning survived with minimal damage, losing only a few leaves. In contrast, similarly sized trees from other species suffered significantly. Nearly half of their upper branches were destroyed, and about two-thirds died within two years. Evan Gora, a forest ecologist and the study’s lead researcher, stated that the almendro tree appears naturally equipped to endure lightning. He suggested that its unique properties allow it to disperse electrical energy more effectively than other trees…

Seattle, Washington, University of Washington, March 6, 2026: Peak bloom predictions are in for UW’s cherry trees

Each spring, large crowds gather on the University of Washington Quad to admire 29 puffy pink cherry trees making their seasonal debut. The trees begin to wake up as the weather warms, and this year, estimates suggest that they will reach “peak bloom” on March 20. The UW’s iconic cherry trees achieve peak bloom when 70% of the blossoms have opened, but the week before and after still offer visitors an optimal viewing experience. The cherry blossom visitors’ website provides updates on bloom status as well as details on transportation, activities and amenities. The cherry blossoms also have live video feeds for virtual viewing and their own social media accounts on Instagram and BlueSky. The cherry trees are both beautiful and ecologically significant. Tracking when the buds burst each year helps researchers predict peak bloom and determine how climate warming is impacting the trees, which were planted in the Washington Park Arboretum in 1936 and then relocated to UW in 1962…

Greenville, South Carolina, News, March 5, 2026: What’s that smell? Bradford pear trees are back and blooming in SC

The tree that has invaded the South and brings comments of, “What’s that smell?” is about to start blooming once again as we inch ever closer to warmer weather and the first day of spring. Bradford pear trees, once an arborist’s dream tree, have become the bane of many in the Carolinas due to their invasive nature and the odor that they release when they bloom. Some states and communities even offer incentives for people to cut down the trees and replace them with native species. Here’s everything you need to know about South Carolina’s love-hate relationship with the Bradford pear. How did Bradford pears get to the U.S.? That would be thanks to Frank N. Meyer, a plant explorer for the U.S. Department of Agriculture, who brought the tree native to eastern Asia to communities across the U.S., according to the U.S. Department of Agriculture. Why are there so many Bradford pear trees? At one time, the trees were a sought-after landscaping item due to their round shape, white flowers and bright fall colors. It can also survive where many other trees couldn’t due to a high tolerance against pollution and the ability to grow in compacted soils and dry conditions…

Pleasanton, California, Pleasanton Weekly, March 5, 2026: Fungus infection forces removal of huge trees

We are fortunate to live in an area with magnificent Valley oaks that are easily centuries old, but we also have the growing firesticks known as non-native eucalyptus. The city of Pleasanton took down a big eucalyptus tree from Lions Wayside Park in September 2020 amid concern from some residents, but city staff held firm that it had to go because of the fungus. It was the same over the last couple of weeks for the three-tree stand of massive eucalyptus on the westside of Foothill Road just north of Longview Drive. These were huge trees, but were suffering from the brown fungus that rots the heart of the tree. It can grow invisibly for years, compromising the viability of the tree and raising the prospect of falling branches or worse…

Helena, Montana, KTVH, March 5, 2026: City removing downed trees on Mount Helena to prevent beetle overpopulation

The city of Helena will soon begin work on Mount Helena, cleaning up damaged trees from December’s historic windstorm. Some changes are being made to those trees to better protect the environment. The city has already been cleaning up trees from December’s windstorm in more populated areas and is now shifting its focus to Mount Helena City Park. Helena open lands manager Brad Langsather will supervise C.R.W. Recourses LLC, which the city contracted for cleanup. “We have concentrations of wind-thrown trees, whether they’re completely down on the ground or hanging up in other trees,” Langsather said. Langsather says they’ve seen the most downed trees in the northwestern corner of the park, estimating around 1,000. Those trees will be cut from the roots and have limbs removed, to be put into slash piles for later burning. Logs easily accessible to crews will be gathered in the summer and go towards firewood distribution programs for families to use next winter. Larger logs — more than 6 inches wide — will stay where they are on the ground, but with a few changes. The city plans to cut off the bark from the top to the bottom every three inches to dry more easily. These changes come with a purpose. Leaving the logs as is could create problems that would harm more trees than the windstorm damaged in the first place. These changes come with a purpose. Leaving the logs as is could create problems that would harm more trees than the windstorm damaged in the first place.“We feel there could be an outbreak of bark beetles in this area that are gonna try to use this as a host tree,” Langsather said…

San Francisco, California, sfGate, March 5, 2026: Tree-obsessed Carmel is considering killing a 200-year-old cypress

A 200-year-old Monterey cypress tree in Carmel is creating division as officials and private property owners haggle over whether or not the towering, 60-foot-tall marvel should be allowed to live. The city takes its arboreal protection and preservation seriously: It has a special commission that provides oversight to the town’s canopy. But Carmel is now caught in a debate over the fate of the magnificent specimen located in the heart of the oceanfront city’s historic residential zone. Last month, the Carmel Forest and Beach Commission met specifically to discuss a request from the homeowners who own the lot where the tree is located. They recently rebuilt their home on the lot, and asked to tear down the cypress, which the city defines as a “significant” tree…

Centennial, Colorado, Colorado Public Radio, March 4, 2026: Colorado launched a task force to fight the pine beetle outbreak — but will the plan work?

Across the Front Range, century-old, iconic ponderosa pines span thousands of acres — stretching from the rugged foothills and into the neighborhoods and backyards of local communities. But over the past three years, that landscape has noticeably shifted. More hillsides are now marked by thinning crowns and shades of brown — signs of a growing pine beetle outbreak, according to the state’s Forest Service lead entomologist, Dan West. “The ability for these small, little insects to work in concert to all attack one tree all at the same time and to overcome the tree’s defenses that have been there for a century is truly staggering,” West said. “And then on top of that, when you think about the breadth of which we’re looking at, just as far as you can see, there’s dead trees.” It only took a few years for these tiny insects, no bigger than a grain of rice, to explode across the Front Range…

New York City, The New York Times, March 4, 2026: Tree Rings Reveal Origins of Some of the World’s Best Violins

Everyone wants a piece of some of the world’s famous violins. Switzerland, France, Slovenia and other European countries have all claimed that the wood used in the celebrated stringed instruments of Antonio Stradivari came from their forests. But now, a study of the tree rings in Stradivarius violins, published in January in the journal Dendrochronologia, has revealed the most likely origin of some of the craftsman’s violins: wood from trees growing at high elevation in northern Italy in the same valley that hosted part of the 2026 Winter Olympic Games. Antonio Stradivari produced over 800 instruments in the 17th and 18th centuries, most of them violins but also cellos, guitars and a harp. A Stradivarius instrument is treasured for many reasons, but most notably its superior sound quality. “It does everything better,” said Peter Beare, a director of Beare Violins Ltd. in England, a company that restores, sells and authenticates high-end violins…

Detroit, Michigan, WDIV-TV, March 4, 2026: Why hundreds of trees were cut down along I-94 in Wayne County

Drivers traveling along Interstate 94 coming from Detroit Metro Airport might have noticed a stark change in the landscape. A lot of trees were cleared from the median. One Local 4 viewer wrote us, concerned about the apparent loss of “thousands” of trees, the piles of logs and stumps now visible from the freeway, and what would happen to the deer that had long lived there. In response, Local 4 visited the site with Diane Cross from the Michigan Department of Transportation. She said the tree removal is part of its long-term Restore 94 project and is primarily about safety and rebuilding the aging freeway. A freeway she said over 100,000 drivers use daily. The work covers a stretch of I-94 from I-275 to Michigan Avenue at the Dearborn–Detroit border. MDOT is “rebuilding part of the freeway totally down to the dirt,” said Diane Cross, a communications representative for the agency. “ And here in the area Inkster and Ecorse we are moving the freeway through this wooded area. To make room for that reconstruction and realignment, MDOT has cut down hundreds of trees in the area. Cross said the agency plans to replace the lost trees. “We are putting back 3,000 trees once the project is done,” Cross said. “They will be along the outside lanes because we want the trees to help absorb the fumes coming off the freeway and help with noise, that kind of thing…”

Greenville, South Carolina, WYFF-TV, March 4, 2026: Columbia and Greenville host pick-ups for Bradford Pear replacements

The South Carolina Forestry Commission and Clemson University are encouraging homeowners to cut down their Bradford Pear trees. Clemson University said that Bradford Pears are not native to the U.S. and have been widely planted across the Palmetto State for years. The trees produce a pungent odor while blossoming and they often break during storms. The invasive trees also directly contribute to one of the worst invasive plant species in the Southeast – the Callery pear. The Bradford Pear Bounty 2026 is an invasive tree replacement program that rewards property owners with native replacement trees in exchange for removing Bradford pears from their property. In the month of March, there are two scheduled events across the state… The Forestry Commission says eligible property owners can register online to claim free native replacement tree(s) in exchange for the removal of invasive Bradford pear tree(s), up to five total per person. Supplies are limited and registration is required. Trees are available first-come, first-served while supplies last…

Los Angeles, California, KABC-TV, March 2, 2026: Goldspotted Oak Borer beetles killed 200,000 oak trees in SoCal; experts share prevention tips

Miami, Florida, WTVJ-TV, March 2, 2026: Mangrove magic: how a tree saved Florida $1.5 billion in hurricane damages

The coasts of Florida are renowned for their beaches, however, these tourists attractions are not the only thing contributing millions and millions of dollars to the state of Florida. A study by The Nature Conservancy (TNC) showed that mangroves, throughout counties in southwest and southeast Florida, averted $1.5 billion in storm damage during Hurricane Irma. Coastal protection is just one of the countless and crucial services that mangroves in Florida provide to Floridians on a daily basis. The amount of damage averted by mangroves resulted in savings of 25% in counties where mangroves were present. Mangroves live in salty waters and are the only tree species that can do so, as stated by TNC. “Mangrove forests act as natural barriers against extreme weather events. Their dense root systems and coastal position help absorb the force of storm surges, reducing the impact before it reaches inland communities,” according to Abigail Davis from the Florida Museum…

Detroit, Michigan, WDET Radio, March 2, 2026: Humans thrive with trees, not computer screens, says new research

New research shows the presence of trees where people live may significantly impact human heart health. The results find that those living in greener neighborhoods have lower risks of heart attacks, strokes, and other cardiovascular diseases. Peter James is a lead researcher of the study at the University of California – Davis. Using over 350 million Google Street View images analyzed with deep learning, James’s team identified street-level vegetation and linked it to long-term health data. However, areas with more grass were linked to higher cardiovascular risk. James says trees help by cooling neighborhoods, filtering air, reducing noise, and promoting activity and social interaction. “We’ve evolved as human beings to be in nature….this is our natural setting, not staring at a computer screen….that’s where we thrive… out in trees and nature,” James says…

Richmond, Virginia, The Richmonder, March 1, 2026: ‘A love-hate relationship:’ Managing Rosedale’s aging trees is a tricky balance for Northside residents

Tara Beaghan’s brother had just entered the garage in her backyard when the rain started. As the wind picked up, Beaghan decided to go outside to put down the cantilever umbrella on her back patio. Wrangling with the umbrella, she was unaware that the massive willow oak in front of her house was about to topple toward her. “All of a sudden I see my patio table flying at me and I remember seeing green. That’s all I remember. The top of the tree actually hit my ankle,” said Beaghan. “The very tippy top, like the leaves and twigs.” The thick foliage of the tree obscured Beaghan from her brother’s view in the garage, leading to a few heart-pounding moments of terror before she emerged unscathed. “We got my chainsaw,” said Beaghan. “I had to cut my way back in to get my dog.” Within minutes, calls came in from neighbors and Beaghan, surveying her house, began to understand the extent of the damage. “It went through the roof, through the attic, so I just got a free skylight out of all of it,” she joked. Stories like Beaghan’s, from last July, illustrate the predicament faced by residents of the Rosedale neighborhood in Richmond’s Northside…

Case of the Day – Friday, March 6, 2026

Posted on March 6, 2026 by TLRoot tagged.

UTAH SWINGERS ISO PLACE TO PLAY

Sounds like a Craigslist come-on, doesn’t it? But morals weren’t loose here, just one of the fittings on a swingset.

A little boy and his father were at a Salt Lake City park, where the boy was swinging on a “toddler swing.” He fell and hit his head on a concrete lip surrounding the swing.

His father sued the City for negligence — after all, he couldn’t get jurisdiction over Sir Isaac Newton to sue for negligent gravity — and the City raised as a defense the Utah Limitation of Landowner Liability-Public Recreation Act. That mouthful of an act is Utah’s recreational user statute, and was intended to encourage public and private owners to open unimproved parklands to the public without charge by protecting them from liability for natural conditions.

The trial court made short work of Dad’s lawsuit, holding that he was a non-paying user of the facilities and that the City thus owed his son no duty of care. But on appeal, the Utah Supreme Court reversed. The Supreme Court held that the City hadn’t opened the park in response to the legislature’s encouragement. Rather, the park was opened long before the recreational user statute passed. The state’s governmental immunity act already permitted suing a city for negligence arising from park conditions.

The Utah Limitation of Landowner Liability-Public Recreation Act was not intended to apply to an improved city park already covered by other laws. Plus, the Utah Supreme Court said, despite the patchwork of decisions across the country as to what was improved and what was not improved land, it appeared that an improved city park — one that included a swingset apparatus like the kind on which the boy was injured — took the city park outside of the protections of the Utah recreational user statute.

An inherently dangerous undertaking?

This may seem to be a great win for a poor little kid with a concussion, but not much attention is paid to the losers. Those would be the taxpayers who fund the settlement that’s sure to follow, as well as everyone who will have one less place to go when the City – flummoxed by the confusing state of the law – finds it easier and cheaper to simply close the parks.

De Baritault v. Salt Lake City Corp., 913 P.2d 743 (1996). Young Marc De Baritault was on the toddler swing at Laird Park is a city-owned park located in Salt Lake City. He fell and injured his head on a concrete ridge surrounding the play area.

His father sued on his behalf, arguing that the City had designed, constructed and maintained the playground negligently. The City argued that because the boy was a recreational user of public lands held open without charge to the general public, the City had no duty toward him under the Utah Limitation of Landowner Liability-Public Recreation Act.

De Baritault argued the Act didn’t apply because its purpose was to encourage private landowners to open up their lands for public use. Although the Act was amended in 1987 to apply to both public and private landowners, De Baritault maintained the Act didn’t apply to Laird Park because the City had not opened the park in reliance upon the Act.

The trial court granted summary judgment on the grounds that Marc was a nonpaying recreational user of Laird Park and that under the Act, Salt Lake City owed no duty of care to the boy. The court also concluded that there was no evidence of deliberate, malicious, or willful conduct by the City, which would have resulted in liability under section 57-14-6 of the Act.

De Baritault appealed.

Held: The Utah Limitation of Landowner Liability-Public Recreation Act did not apply to a small, improved city park and thus did not preclude Marc’s recovery for his injuries. The Court held that extending the Act’s application to improve city parks which, unlike many private wilderness lands, were not opened to the public in response to the Act, and which were already covered by other laws – such as the Governmental Immunity Act – would serve neither the legislative intent nor the purpose of the statute.

In Utah, courts that have focused on the nature of the land itself have found some combination of the following characteristics must be present before immunity under the recreational use statute applies: the land must be (1) rural, (2) undeveloped, (3) appropriate for the type of activities listed in the statute, (4) open to the general public without charge, and (5) the type of land that would have been opened in response to the statute.

– Tom Root

Case of the Day – Thursday, March 5, 2026

Posted on March 5, 2026 by TLRoot tagged.

TRUE CRIME

You’d think that with all of the murder, mayhem, opioids, election-diddling, crypto crooks, Epstein-ing and computer fraud, we’d have enough crime out there to satisfy the most hidebound law-and-order type. But no, we need even more criminal statutes to serve as a trap for the unwary.

Unwary folks like Mohammed Azmat of Franklin Township, New Jersey. There has to be a backstory of ill will here, but – in honor of Sgt. Joe Friday – we’ll stick to the facts. Mohammed’s neighbor, Tony Gaylord filed a complaint in court against Mo, alleging violation of Ordinance § 222.17 for failure to maintain the trees along their shared property line.

Not that! Not Ordinance § 222.17! Old ladies swooned. Town elders gasped. It was the Queen Mother, the local ordinance that required homeowners to maintain their trees “in a safe manner” or face the full wrath of the criminal law.

This is ridiculous. Lock a homeowner up for not trimming trees? And not keeping them “in a safe manner so they shall not create a hazard to the general public,” whatever that meant? Mo argued that the criminal statute was so vague as to not fairly inform those subject to it what was required. For those of you who were on senior “skip day” when your high school government class covered the topic, such vagueness violates a citizen’s right to “due process of law” under the 5th and 14th Amendments.

But the Court didn’t buy it. It held that anyone who read the ordinance could tell that “all trees… [shall be] maintained in a safe manner so they shall not create a hazard to the general public” would inform the reader that a dying tree or one likely to fall had to be removed. That’s so, but just about every vague statute or ordinance clearly covers hazards on the far shore of reasonableness. Imagine a state law that punished people who weren’t nice. Obviously, punching a Brownie in the gut because you were on a diet and couldn’t eat cookies would break the law. (Plug: Buy cookies from Brownie Erin). But how about roaring into a parking place ahead of a grandmother in a Buick? Or walking past a homeless person with a thousand-yard stare? Or even just ducking around an aisle at the grocery store to avoid a talkative neighbor because you’re in a hurry?

Generally, the “void-for-vagueness” doctrine requires that a criminal statute define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. The legislature – or, here, the township government – is required to establish minimal guidelines to govern law enforcement. Without some kind of guidance, a criminal statute may permit what the Supreme Court once called “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.”

Such as letting a neighbor who has a bone to pick turn his complaint into a criminal case. We would never suggest that a guy with a WASP name decided to lay the leather to the guy with the Middle Eastern name who just happens to worship on Fridays at a mosque. But we will suggest that slippery criminal ordinances like this one are perfect bludgeons if you want to oppress someone for reasons having nothing to do with the putative issue.

The thing about vagueness is that it doesn’t really inform one of what is permitted and what is proscribed on the margins, where the differences may be slight. Some places really love statutes like that. But this is America.

Beyond the vagueness issue, of what social utility is an ordinance that uses the loss of liberty to punish someone for not maintaining property? Fines, liability for foreseeable effects of sloth, or even having the municipality perform the maintenance and then billing the owner at a punitive rate, all work as well, and do not soak up municipal resources needed more for those whose conduct poses a more clear and present danger to the public than a dead tree, or – for that matter – encourage people other than the complainant in this case (of whom we suspect nothing but pure motives) to pursue statutory mischief.

State of New Jersey v. Azmat, Case No. A-0296-14T3 (Super.Ct. N.J., June 13, 2016) 2016 N.J. Super. Unpub. LEXIS 1348, 2016 WL 3221907: Anthony Gaylord filed a complaint in the Franklin Township Municipal Court against his neighbor Mohammed Azmat, alleging violation of Ordinance § 222.17 for failure to maintain the trees along their shared property line. The ordinance provides: “The owner or tenant of any lands lying within the Township shall keep all trees… maintained in a safe manner so they shall not create a hazard to the general public…” Tony said trees on Azmat’s property had fallen onto his property, causing damage to his property and to power lines. Tony said he was afraid other trees that he deemed dangerous could fall in a windstorm, hurricane, or snowstorm.

Tony and Mo could not agree on which trees should be removed, and at trial, the State of New Jersey presented testimony from Tony and its expert, Robert Wells, an International Society of Arboriculture certified master arborist. Tony generally bellyached about the “hazardous conditions” he claimed existed on Mo’s property. The expert identified two white Ash trees near Tony’s power lines, which he opined were hazard trees that posed a “non-imminent threat” of “tree failure” and could possibly fall on the power lines. He also cited two of Mo’s Locust trees, which were leaning over power lines connected to Tony’s property, and he said were hazardous and should be cut down. Finally, he pointed out some dead limbs on a Sweet Gum and Red Oak tree, which extended over Tony’s power lines. The expert did admit that the trees he identified as hazardous had already survived Hurricane Irene in August 2011 and Hurricane Sandy in October 2012.

The municipal court found that “[c]ertain trees of defendant’s property pose a clear and present danger to complainant… his house and to utility lines that transverse both parties[‘] property.” He ordered Mo to cut down and remove the trees identified in the expert’s report within sixty days, or be fined or jailed. Mo appealed to the Law Division of the Municipal Court, which upheld the judge.

After that, Mo appealed to Superior Court, claiming the ordinance was unconstitutionally vague, and that even if it was not, there was not enough evidence to convict.

Held: The criminal ordinance was not unconstitutionally vague, and ample evidence supported Mo’s guilt. The Court said that for an ordinance to be vague, there had to be so little guidance “that an enforcement officer would not be able to point to objective facts that would lead a reasonable person to realize his or her conduct was a violation.” But here, the ordinance is specific; Ordinance § 222-17 plainly states that “all trees… [shall be] maintained in a safe manner so they shall not create a hazard to the general public.” Thus, the ordinance is clear “that a tree that is dying or likely to fall must be removed by its owner if it can cause a hazard to others.”

Mo also complained that the State’s expert had only visually inspected the trees from 12-15 feet away, not an acceptable methodology within the arboriculture profession. Mo argued that the fact that the “hazardous” trees did not fall during Hurricane Sandy, which occurred after the complaint was filed, showed that the expert’s opinion was unreliable and speculative. Finally, he pointed to some inconsistencies between the expert’s written report and his testimony.

The appellate court found no merit to Mo’s contention that the expert testimony was inadmissible net opinion. “The net opinion rule… forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data,'” the Court said. “Here, the expert based his opinion on more than 40 years of experience as a certified master arborist, who, based upon his personal observations, determined that certain trees on the defendant’s property were hazardous and should be removed.” Mo never rebutted the methodology of citing dead and detached limbs to conclude that the trees were a threat to Tony’s power lines. “Further,” the Court held, “the cited inconsistencies between the expert’s report and his testimony do not cause us to take issue with the trial court’s reliance on his opinion to find that defendant violated the ordinance.”

Can you tell I think this law is an unconstitutional mess?

– Tom Root

Case of the Day – Wednesday, March 4, 2026

Posted on March 4, 2026 by TLRoot tagged.

SOME LATE-SEASON SNOW

The valentine cards are in the trash. That can only mean one thing: St. Patrick’s Day is right around the corner. We wandered into a Family Dollar the other morning for some pork rinds and red pop, only to be assaulted by not just shamrocks, but Easter bunnies, IRS forms and even Mother’s Day cards. Halloween is just around the corner.

We’ll launch our First Meteorological Day of Spring festivities a few days late (it was last Sunday) with some late-season Snows. And as you’ll see, Snow is a distinct possibility.

The Snows we consider today were a couple, one party in a convoluted adverse possession case. The surveyor began the problems in 1969 by taking the landowner’s word that a rock marked the corner of the 40-acre tract. It was the wrong marker by about 40 feet, and so everything he did from there was wrong, too. Garbage in, garbage out.

But no one knew about the error. The landowners used the faulty centerline to give an easement to neighbors, and the neighbors put a driveway on it. That was off-center as well. To compound problems, there was a decrepit barbed wire fence off-center from the off-center centerline that Mr. and Mrs. Snow — who had bought land a year after the faulty survey — believed to be the real centerline.

When the owner next to the Snows sold in the mid-1990s, he knew they claimed the 1.5 acres between the easement and the old fence as theirs, so he sold 8.5 of his 10 acres by warranty deed but conveyed the disputed 1.5 acres by quit-claim deed (which meant that the seller wouldn’t help out the buyer in any legal battle arising with the Snows).

And the battle inevitably came. The Snows argued that the old fence enclosed the land, and they had exercised control over the disputed acreage by cutting a firebreak and harvesting cedar. But landowner Camp said the land was so densely wooded, no one could see what – if anything – that the Snows had done. The trial court held that the Snows hadn’t exercised continuous control over the land and that the old fallen-down fence didn’t demark or enclose anything. And there was no evidence that Camp or his predecessor had acquiesced in the old fence being the boundary. If he had, he wouldn’t have conveyed the disputed area, even by quit-claim deed.

(By the way, contrary to popular belief, the deed is not called a “quick claim” deed.)

Snow v. Camp, 2007 Ark. App. LEXIS 631, 2007 WL 2782825 (Ark.App., 2007). When the Snows purchased a 40-acre tract in Baxter County in 1967, an old barbed-wire fence crossed the property. It seems that at the time the surveyor, John Ed Isbell, set the boundary between the Snows’ lands and that now owned by the Camps in 1969, he used a stone shown to him by the property owners as the corner of the 40 acres, and then goofed, laying out lines that were about 80 feet short of a true forty acres. Then, in 1970, the Snows, the purchasers of another tract, and the grantor signed a right-of-way easement agreement. The legal description for the 50-foot easement agreement used the 1969 survey’s centerline as the midpoint of the easement. The Snows built a 15-foot gravel driveway that was mostly within – but was not in the center of – the 50-foot easement.

Twenty-five years later, the Williamses bought the tract now owned by the Camps. During his 18 months of ownership, Williams learned that the Snows claimed the 1.5-acre portion lying south of the old fence line and north of their actual boundary line. When he sold 10 acres in 1997 to Camp, Williams knew there was an issue about the area, so he conveyed 8.5 acres north of the old fence by warranty deed and the 1.5-acre area at issue by quitclaim deed.

In May 2000, the Snows sued the Camps for adverse possession of the 1.5-acre tract and for an injunction preventing the Camps from interfering with the easement. They argued that the boundary line between the parties’ properties was established by acquiescence along the fence line. As a result of the error in the survey on which the easement’s legal description was based, the Snows sought reformation of the easement to reflect their actual use.

It’s “public” with an “l”. Likewise, it’s “quitclaim” and not “quickclaim.”

At trial, Isbell admitted that his survey was wrong. Ramona McDonald, who was a party to the easement agreement, said that they had intended for the road to be in the middle of the easement. The Snows had exercised control of the 1.5-acre tract by cutting cedar up to the fence line and mowing for a firebreak. When they bought the property, the land was so heavily wooded that the area in question could only be accessed on foot. Williams said he had understood that he owned property north and south of the fence; that he maintained his yard to the fence line; and that on the other side of the fence were dense woods, which he was unaware had been mowed. He said that, once, when he had discovered some men hired by the Snows cutting sprouts close to the easement, he told them that it was his land. He said the fence was completely down on the ground for about twenty feet in at least two places, that it did not surround the Snows’ property and that no one kept animals on either side of the fence. He knew that the Snows claimed the land. He said that neither he nor the Snows had used the area, which he called “just a vacant, barren strip of woods.” Michael Camp admitted that Williams had informed him, after giving him the two separate deeds, that the Snows claimed the 1.5-acre tract. He said he had never considered the old fence to represent the boundary line.

The trial court ruled that the Snows failed to establish adverse possession of the area in dispute, which it found to be unenclosed because they did not continuously occupy or use the property for more than seven years and they never excluded any record owner from it. The Snows appealed.

Held: The Snows didn’t prove their adverse possession. The Snows argued the trial court should have considered the significance of the surveyor’s incorrect centerline in deciding the claim for adverse possession, although the old fence line to which they claim adverse possession is considerably north of that Line. They argued they had shown control of the 1.5-acre tract since 1969 by clearing a fire break around and making repairs to the fence, cutting trees and bushes, harvesting rocks, mowing, parking equipment, and feeding forest animals there. However, the appeals court held that due deference had to be given to the trial court’s superior position to determine the credibility of the witnesses, and the trial court had found some testimony more compelling than others.

In order to prove the common-law elements of adverse possession, the Snows had to show that they had been in possession of the property continuously for more than seven years and that their possession had been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. It is ordinarily enough proof of adverse possession that a claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. For possession to be adverse, it must be hostile only in the sense that it is under a claim of right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to the superior right of the holder of title to the land.

There is every presumption that possession of land is subordinate to the holder of the legal title. The intention to hold adversely must be clear, distinct, and unequivocal. What’s more, the General Assembly added a requirement for adverse possession in 1995, that the claimant prove color of title and payment of taxes on the disputed property or a contiguous piece of land for seven years. Fencing the disputed area is an act of ownership evidencing adverse possession, and the fact that the fence may have deteriorated does not necessarily mean that the property is not enclosed. Instead, the question is whether the enclosure is sufficient to put the record title owner on notice that his land is held under an adverse claim of ownership. In this case, the Court ruled, the evidence easily supported the trial court’s decision. The Snows’ use of the disputed land was sporadic and inconsequential, and in no way exclusive.

The Court rejected the Snows’ argument that the parties acquiesced to the fence line as the boundary. Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and apparently consent to that line, it becomes a boundary by acquiescence. A boundary line by acquiescence may be inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. All the Snows had here was a dispute and no evidence of a tacit recognition by the Camps or their predecessors in title that the old fence line was the boundary.

– Tom Root

Case of the Day – Tuesday, March 3, 2026

Posted on March 3, 2026 by TLRoot tagged.

TOLD YOU SO

Perhaps we should use Mr. Peabody’s Wayback Machine …

Travel back in time with me… back, back, back to July 10, 2025, when we solved the poor Mazda owner’s problem by determining that maybe, just maybe, his landlord was liable for injuries to the unhappy sports car enthusiast’s set of wheels. As in all cases, liability depends on the specific facts. That’s why there’s no substitute for a good local attorney.

While considering the RX-8 owner’s dilemma, I came across today’s case. A hospital was built back in the early 1970s. A landscape architect suggested sweetgum trees on the grounds. When the trees were planted, they seemed like a nice touch, an architectural exclamation point to the building. The sweetgum is a good-looking tree but rather prolific in its production of sweetgum balls.

Times changed, more people were getting sick (what with coronavirus and all), and the hospital grew. So did the trees. When a parking garage was added in the 1980s, the designer told the hospital the trees should be removed because they dropped sweet gum balls that got everywhere and were a nuisance. The hospital refused.

Ten years later, a hospital visitor slipped on a sweetgum ball in the parking lot and fell, breaking her wrist. Lucky for her there was a hospital nearby. She didn’t feel lucky, however … rather, she felt aggrieved. So she sued the hospital for negligence. What else does an aggrieved person do?

The Court applied the reasonable care standard to the case and found the hospital was negligent. Crucial to the decision was the fact that the parking lot designer had told the hospital years before that the trees were a nuisance, for the precise reason that led to Ms. Henderson’s injury. The hospital didn’t necessarily have to cut down the trees, the Court said, but it could have at least instituted a regular clean-up program to stay on top of the sweet-gum ball problem

Henderson v. St. Francis Community Hospital, 303 S.C. 177, 399 S.E.2d 767 (Sup.Ct. S.C. 1990). Florence Henderson (probably not her real name) visited a friend who was a patient at St. Francis Hospital. As she was walking in the hospital parking lot to her car, she stepped on an accumulation of sweet gum balls, turned her foot and fell, breaking her wrist. The balls had fallen from a sweet gum tree planted in the parking lot. She fractured her wrist and sustained various bruises and abrasions.

The original parking lot of St. Francis was designed by CRS Sirrine, Inc. in 1969. The sweet gum trees were planted soon after that. In about 1982, Snoddy & McCulloch Associates, Inc. designed an addition to the parking lot, which had several levels or tiers. Snoddy & McCulloch recommended that the sweet gum trees be removed because they produced debris that would accumulate and become a nuisance. St. Francis refused to remove the trees, instead building a stairway next to one of them.

Sweetgum tree ... star of Fancher v. Fagella, making an encore appearance here.

The sweetgum tree … star of Fancher v. Fagella, makes an encore appearance in the St. Francis parking lot.

Henderson sued St. Francis, Sirrine and Snoddy & McCulloch, alleging negligent maintenance and negligent design of the parking lot. The jury returned a verdict against St. Francis and Sirrine, but the trial court reversed the jury, entering judgment n.o.v. in favor of the defendants. The Court of Appeals affirmed, and Ms. Henderson took the matter to the South Carolina Supreme Court.

Held: The Court reversed the judgment. It held that the Hospital was negligent, but not the parking lot designer or the landscape architects. The Court held that the evidence supported the finding that the Hospital had been advised to remove sweet gum trees because the trees produced debris which created nuisance and maintenance problems. It didn’t and thus was negligent in failing to provide reasonably safe conditions for its visitors and patients by not removing the trees or employing an adequate maintenance program. The Court said that although the operator of a parking lot is not an insurer of the safety of those who use it, it must nevertheless use reasonable care to keep the premises used by invitees in a reasonably safe condition.

The idea is hardly novel – the New York court said it over a century ago in Gibson v. Denton – if you’re aware of the risk, you had better do something about it. Here, the Hospital had been warned that the trees required removal or regular care. Neither happened.

The degree of care to be exercised by a property owner must be commensurate with particular circumstances involved, including considerations like the age and capacity of the invitees who will be using the premises. For purposes of measuring whether the Hospital discharged its duty, the “invitees” are the people who visit patients in the hospital and use the parking lot.

– Tom Root

Case of the Day – Monday, March 2, 2026

Posted on March 2, 2026 by TLRoot tagged.

SMILE WHEN YOU SAY THAT

“I get slandered, libeled, I’ve heard words I never heard in the Bible …”

Oh, thank heaven for nosy and nasty neighbors. Because of them, we have a case today that started out as a tree problem but ended up as a neighbor law problem. And a dignatory tort, to boot. Forgive me, but I love this stuff.

Matters began between neighbors Joe Bouler and Linda McKeever Bullard when she claimed that he had trespassed on her land and cut down some trees. Things devolved from there. At one point, Joe was sure Linda was taking pictures of his wife – oh, the horror of it all! – and he complained to the cops. For good measure, he told the officer that Linda also had an anti-9/11 sign in the window.

The sign allegedly said, “9/11 F*** You.” Without the asterisks, of course. Pretty caustic stuff, huh?

If the report was something Joe made up to inflame the police officer’s passions, it fell short. It was hard for a police officer to be too fired up when he couldn’t really tell what the sign meant.

Not literally. The literal meaning of the Queen Mother word was clear enough. But not the context, a distinction that Ms. Bullard belatedly appreciated when she sued her big-mouthed neighbor for slandering her to the police by accusing her of posting such a scurrilous sign.

The court was puzzled, too. Did the sign indicate that Ms. Bullard was one of those conspiracy types? Maybe she figured America deserved to suffer 9/11. But maybe she meant to flip the bird (figuratively speaking) to Osama bin Laden. If so, she would hardly be the first person to use both the term “9/11” and the f-bomb together.

Now if Joe had said he’d seen any of these signs in Linda’s window, the slander per se would probably have been complete.

That was a problem, the Court said. You can’t be slandered unless you’ve been damaged. Some slander is so bad that damages are presumed. That is called “slander per se” under Georgia law (a term fairly common among the states). But slander per se must meet a strict definition, and one element is that it must be clear without resorting to extrinsic facts.

The problem, the Court said, is that the “9/11 F*** you” sign wasn’t clearly pro-American, pro-Al Qaeda, pro-religious right, pro-wacko conspiracy, or pro-anything. Without more information, the sign didn’t suggest what — if anything — Ms. Bullard believed or was trying to convey. And because that information wasn’t a part of the sign she had allegedly put up, she had no case against her neighbor.

Bullard v. Bouler, 286 Ga.App. 218, 649 S.E.2d 311 (Ga.App. 2007). Linda McKeever Bullard and her neighbor, Joe Bouler, had quarreled previously in a trespass action in which she claimed Joe had caused trees to be cut down on her land. Bullard took pictures of the trees that had been cut down as evidence for the trespass suit.

Shortly thereafter, a Fulton County Police officer came to her door and asked to speak to her. The officer said Bouler had complained that she was taking pictures of Bouler’s wife in the Bouler’s backyard and that he also had said Bullard had been posting signs in her window that said, “9/11, F- – – You.” Bullard testified that the police officer reported these allegations “with a look of utter contempt.” Bullard vehemently denied she had posted such signs.

The police officer confirmed that Bouler had made the allegation about the signs and that she had denied it. Bullard sued, alleging that Bouler’s statement damaged her by accusing her “of a debasing act that may exclude her from all of American society,” an allegation which tracked OCGA §51-5-4(a)(2).

Following discovery, the trial court granted Bouler’s motion for summary judgment. It held that the words spoken were not slanderous because they were “an expression of pure opinion, which is neither provable as true nor as false.”

Bullard appealed.

Held: Bouler’s allegation to the policeman was not slander. Bullard alleged a claim of slander or oral defamation under OCGA §51-5-4(a)(2), which defines one form of defamation as “charging a person … with being guilty of some debasing act which may exclude him from society.” For this form of defamation, damage is inferred, making this type of slander “slander per se.” In other words, malice is inferred from the character of the charge. In order to constitute slander per se, the words must be injurious on their face (meaning that extrinsic facts may not be considered), and the court may not rely on innuendo.

When words are defamatory per se, innuendo — which merely explains ambiguity where the precise meaning of terms used in the allegedly slanderous statement may require elucidation — is not needed. Here, the Court said, any slanderous meaning applicable to Bullard from a statement that she had posted a sign with the words “9-11 F— You” is not apparent in the plain meaning of Bouler’s statement. At most, the Court said, Bouler’s words mean that Linda Bullard was the type of person who would say to the public, “Nine-eleven, F— You.” But what the sign meant was ambiguous.

Bullard thought it meant Bouler was saying that she was the type of person who would disparage America’s loss on September 11, 2001, and that Bouler intended to inflame the police officer, a “first responder,” who might have taken offense at that thought. If that was what the words meant, Bouler’s words might very well constitute slander. But, the Court said, the words do not constitute slander per se here because what they really mean is not apparent from the plain meaning of the words.

In order to find the meaning, the viewer would have to rely on some extrinsic fact, and that takes the words out of the “slander per se” category.

– Tom Root