Case of the Day – Tuesday, June 23, 2026

Posted on June 23, 2026 by TLRoot tagged.

DISHONORABLE NON-DISCHARGE

Our topic today is an institution built on second chances – bankruptcy. It’s about to become very popular, with a lot of tight-margin businesses – after being beaten down by on-again off-again tariffs, plagued with labor shortages, and walloped by runaway energy prices – are being pushed over the edge as the coming AI-induced recession arrives.

They’re all headed for bankruptcy court. And that’s good… maybe not for the business, certainly not for the creditors, but for the economic engine that is America, bankruptcy is a storied and crucial cog in the wheel of commerce.

There are those who persuasively argue that American bankruptcy laws encourage the kind of risk-taking that benefits the economy. Nevertheless, it’s not all roses: some try to take advantage of the bankruptcy laws. The statutes provide protection against bad apples wanting to use bankruptcy to regain undeserved polish. We’ll look at one such bulwark today, the Act’s prohibition against debtors discharging debts resulting from willful and malicious injury to someone else.

The difference is important. A debtor who injured someone else because he or she negligently ran into that someone’s tree with a car could have the debt discharged. But if he or she deliberately came on someone else’s land, for example, to cut down a Christmas tree and carry it home, the debt that misconduct represented would not be forgiven.

Sometimes the line isn’t that clear, such as in today’s case. The debtor, Ken Harper, got sued because when he had 47 acres of his own timber harvested, the crew he hired also harvested trees on 30 acres belonging to his neighbor. A state court jury had found him liable for trespass and conversion of timber and awarded punitive and treble damages. The Bankruptcy Court found that the debt couldn’t be discharged, because trespass was an intentional tort (in that the trespassing party intended to go where his feet took him, whether he knew it was his neighbor’s land or not) and because timber conversion required a willfulness to exercise ownership over the property (whether or not the actor knew it was someone else’s to begin with).

As for the maliciousness of the injury, the Bankruptcy Court found that it was enough that the state court jury had assessed punitive damages against Harper. The jury couldn’t have done that, the Bankruptcy Court said, unless it was clear that Harper knew his conduct was likely to cause harm. And as for the treble damages, the Court said, those are part of the judgment and aren’t dischargeable, either.

In re Harper, 378 B.R 836 (Bankr. E.D.Ark., 2007). Ken Harper owned Real Estate Development, Inc. (“REDI”). REDI bought about 47 acres of land from Quadrangle, leaving Quadrangle with about 1,200 acres of land surrounding REDI’s purchase. REDI hired Arkansas Timber & Logging to log timber on REDI’s land. On or about the same time that this logging occurred, Arkansas Timber logged several acres of Quadrangle’s property. Quadrangle sued Harper, REDI and Arkansas Timber for trespass and malicious conversion of timber on 30 acres, asserting that Harper hired Arkansas Timber to cut timber on REDI’s own lands and that this agreement became a collusive effort to harvest and convert timber from Quadrangle’s land.

The jury did not find that the defendants acted in collusion, but it did return a verdict finding that Harper was guilty of trespass and conversion. The jury was instructed that trespass required that the defendants be found to have intentionally entered Quadrangle’s property. It held that Harper continued his trespass conduct with malice or in reckless disregard of the consequences, or that Harper intentionally pursued a course of conduct for the purpose of causing injury or damage. Quadrangle was awarded compensatory, treble and punitive damages against Harper, who went bankrupt without paying the judgment.

Quadrangle filed a complaint in the bankruptcy prceeding to determine whether Harper could discharge its judgment against him in bankruptcy.

Held: The judgment could not be discharged in bankruptcy. Quadrangle argued that the judgment obtained against Harper was nondischargeable under 11 U.S.C. § 523(a)(6) as a debt for a “willful and malicious injury by the debtor to another entity.” Here, the issue was whether Harper’s actions constituting trespass and conversion of timber were willful and malicious, as required to except a debt from discharge under § 523(a)(6).

Quadrangle argued that the jury instructions, jury questionnaire and judgment supported a finding of willful and malicious injury on their face. Harper argued that the mens rea requirement of intent was missing from the state court proceeding, and the issue should be tried in bankruptcy court. The Court said that a “willful” act was “deliberate or intentional,” and the “willful” element is satisfied if the injury is the result of an intentional tort. The malicious element is satisfied if, in committing the intentional tort, the perpetrator intended the resulting harm, or the harm was substantially certain or nearly certain to result. In this case, the Court said, the jury instructions regarding trespass and conversion clearly established that the element of willfulness was presented to the jury. The jury instruction regarding the intent necessary for a finding of trespass specifically stated, “[t]he intent necessary to commit a trespass is that to be on a particular piece of land that does not belong to you.”

With respect to conversion, the jury was instructed that Harper must have had the “intent to exercise dominion or control over the goods that is, in fact, inconsistent with Quadrangle’s rights.” Finally, the jury instruction for “malicious conversion of timber” requires a finding that the Debtor “acted with intentional and deliberate disregard for the plaintiff’s property rights.” All of these standards describe a willful injury, the Court said, the purposeful invasion of another’s legally protected interests. Also, trespass and conversion are considered intentional torts under Arkansas law and are, therefore, willful acts. The Bankruptcy Court found that the jury’s findings with respect to trespass and conversion established that Harper’s actions were willful but not necessarily malicious. But because the jury awarded punitive damages — that the action was taken with either the intent to cause harm or with the knowledge that harm was substantially certain to occur — it was clear that the likelihood that Harper knew that harm was substantially certain to occur as a result of his intentional actions was decided by the jury.

Although Harper argued that the treble damages were dischargeable, the Supreme Court determined that treble damages are encompassed by the term “debt” as it is used in the Bankruptcy Act.

– Tom Root

And Now The News …

Posted on June 23, 2026 by TLRoot tagged.

St. Louis, Missouri, KMOV-TV, June 23, 2026: Central West End couple faces foreclosure lawsuit over $36,720 tree removal bill

A Central West End couple is facing a foreclosure lawsuit over an unpaid tree removal bill they say was never disclosed before they signed an emergency agreement following the May 2025 EF-3 tornado. The couple, who spoke anonymously, said they had only moments to react when the tornado struck. “The lights went off… The giant tree in front of our house ended up smashing into the front of it,” the homeowners said. The tree shattered their windows and blocked the entrance to their home. The couple said removing it became their first priority. Their neighbor recommended OLI Outdoor Services. Neighbors said several of OLI’s trucks were already in the neighborhood. “I remember I mentioned insurance… he said the insurance will take care of it,” the homeowners said. The couple signed an emergency mitigation agreement that they said had no pricing details at the time. “He didn’t give me any idea of what it would cost,” the homeowners said. About a month later, they received an invoice totaling $36,720…

Lincoln, Nebraska, Nebraska Public Media, June 22, 2026: World’s largest eastern cottonwood discovered in central Nebraska

Justin Evertson describes it almost like a children’s story: something akin to an early page from Kenneth Grahame or Beatrix Potter. “In an out-of-the-way corner where nobody’s poking around, there’s this huge cottonwood,” he marvels. “Why is it there, how did it get there? That’s just kind of neat. In Pibel Lake, of all places.” Evertson is Nebraska Forestry’s Champion Tree Program Director. He’s more surprised by the location than the tree itself. Nebraska’s an ideal environment for the species. “Wherever there’s a creek or a channel of water, you’ll find some cottonwoods,” he said. “And since there’s thousands of miles of those streams around the state, there’s a lot of places for them to grow, and they’re constantly popping up, getting big.” But to say the Pibel Lake cottonwood’s “popped up” would sell it short, literally…

Iron Mountain, Michigan, The Daily News, June 23, 2026: UP has last Forest Service nursery producing trees in Eastern Region

The last remaining U.S. Forest Service nursery in the Eastern Region is located in Ottawa National Forest in the western Upper Peninsula. Tree seedlings grown there are shipped to destinations throughout nearly the northeastern quarter of the country. The J.W. Toumey Nursery, named in honor of professor and botanist James W. Toumey, was established in 1935 in response to a growing need for tree seedlings, according to the U.S. Department of Agriculture. Toumey, born in Lawrence, Mich., in 1865, earned his graduate and master’s degree from Michigan State Agricultural College. With an interest in cacti, the botanist worked for eight years at the University of Arizona, eventually becoming a professor of botany. Toumey also worked as a botanist at the State Agricultural Experiment Station…

Mumbai, India, The Times of India, June 22, 2026: Italy planted millions of spruce trees to protect the Alps; 90 years later, scientists find biodiversity has halved

In the 1930s, under Mussolini’s fascist regime, Italy launched a sweeping reforestation drive across the northern Alps. The goal was to practically prevent soil erosion, secure timber, and project an image of national productivity. The chosen tree was Norway spruce (Picea abies), a fast-growing conifer prized for its straight trunk and reliable wood yield. Thousands of hectares of meadows and native forest were cleared to make way for these dense, uniform plantations. It seemed, at the time, like a reasonable solution to a real problem. Nearly a century later, a new study published in the journal Ecosystems has measured what that decision actually cost, and the numbers are striking. Plant diversity in these spruce monocultures is more than 50% lower than in native forests, and nearly 75% lower than in the region’s natural grasslands…

Valencia, California, Santa Clarita Valley Signal, June 21, 2026: Santa Clarita’s Carefully Maintained Canopy of Trees

From the tree-lined paseos to the shaded sidewalks that wind through neighborhoods, Santa Clarita’s urban forest is both a defining feature of the city and a carefully managed resource—one that continues to grow and adapt alongside the community itself. Overseeing that effort is Valerie Ferchaw, the city’s Urban Forestry administrator, who helps manage what she describes as a vast and dynamic system. “The City’s inventory of approximately 93,500 trees encompasses those located within the public right-of-way and other publicly managed areas throughout Santa Clarita, including along streets and trails, at various city facilities, within parks and Landscape Maintenance Districts,” Ferchaw said. Caring for nearly 100,000 trees is no small task. According to Ferchaw, the work is constant and multifaceted. “Caring for a community forest of this size involves ongoing inspection, pruning, irrigation management, pest monitoring, risk mitigation, replacement planting, management of community requests, and coordination with infrastructure and development projects,” she said…

Chicago, Illinois, Tribune, June 21, 2026: Try to wait until winter to remove dead trees

Question: I have two large shade trees that are not leafing out. Does that mean they are dead and need to be removed? What should I consider when organizing the removal of the two trees?
— Carmen Rios, Vernon Hills
Answer: If the dead trees do not pose any safety hazards and their appearance in your garden is not an issue, you may want to wait until winter or late fall to remove the trees to lessen the impact on your garden. You may also be able to secure better pricing if the work is done in the winter. The more plants around the trees that are to be removed, the more difficult it will be for a company to complete the removal. Between the crew walking around to perform the work and branches that fall on your garden, there’s a higher risk of trampling on perennials if the work is done during the growing season. However, I have seen tree removals done during the summer with remarkably little impact on surrounding plants. Most perennials will recover and look good next year but it may spoil the appearance of a portion of the garden for the remainder of the gardening season. Perennials like hosta are easy to move out of the way for tree work and replace when the work is completed. You do not describe where the tree is located on your property, but access for large equipment will also be a factor in removing it. Putting plywood down before driving in large equipment and avoiding work when the ground is wet is best practice. There will be less soil compaction if the ground is dry or frozen when the work is done…

Montreal, Quebec, CBC, June 21, 2026: Quebec town recognizes trees as living beings with rights

A small town west of Montreal has decided to officially recognize trees as living beings with rights of their own, in what an environmental organization describes as a first in Quebec and Canada. A resolution adopted by Terrasse-Vaudreuil city council on June 9 declares that trees are worthy of protection, “including the right to life, to natural growth, to integrity and to regeneration.” Mayor Michel Bourdeau says Quebec filmmaker André Desrochers inspired the community to take action. He said Desrochers’ film, called Des arbes et des arts convinced citizens that trees are living entities that breathe and communicate with each other through their root systems. “A tree is like a human being,” Bourdeau said. “It breathes, it lives, it takes in water. It protects us from all sorts of things. The International Observatory of Nature Rights says the town of about 2,000 also became the first municipality in Quebec and Canada to sign on to the Universal Declaration of the Rights of the Tree, which is an international initiative spearheaded by environmental groups. Its three main core articles state that trees are living beings and a common human good, that life on Earth depends on their existence, and that humans must act in “fraternity and solidarity” with them…

Martha Stewart, June 20, 2026: 6 Invasive Trees You Should Never Plant, According to an Arborist and a Horticulturist

Trees can provide much-needed shade, privacy, and beauty to any landscape. However, they can also significantly impact the local ecosystem, making it easier or more challenging for native plant and animal species to thrive. Invasive trees in particular can harm local forests and their inhabitants, so it’s best to avoid them however you can. Of course, where you live often dictates whether or not a tree is considered invasive, so we spoke to two experts to get the full scoop. These pros—an arborist and a horticulturist—identified seven common varieties that you may encounter and that you’re better off avoiding altogether. Privet, part of the Ligustrum genus, is commonly sold as a landscaping tree or shrub due to its dense foliage and quick growth. However, while it may seem like an aesthetically pleasing way to add privacy to your property, it’s best to avoid this invasive tree. “Privet escapes from the landscape and gets into natural forests and other areas,” says Chris Roddick, an ISA-certified arborist and co-author of The Tree Care Primer. Even with careful maintenance, privet can quickly wreak havoc on the natural environment, as birds and the wind can carry its seeds—causing the tree to promptly take over forests and disturb local ecosystems…

CNN, June 17, 2026: Ancient Sherwood Forest oak tree reputed to have sheltered Robin Hood has died

When knights of old went looking for Robin Hood, they knew where to find him. The legendary outlaw has been associated with England’s Sherwood Forest for centuries, and one tree in particular has traditionally been cited as his hideout: the Major Oak. Scientists now believe this 1,200-year-old oak tree has died after it failed to produce any new leaves this spring, British conservation body the Royal Society for the Protection of Birds said in a news release. With a canopy spread of 28 meters (92 feet) and a trunk circumference of 11 meters (36 feet), the Major Oak was one of the biggest trees in Britain. Supports for some of the branches were put in place in the early 20th century, and the tree was fenced off in the 1970s…

Ottawa, Ontario, CTV News, June 16, 2026: A tree in this Ottawa homeowner’s yard is destroying her home, but she can’t cut it down

By looking at the damage, it appears as if an earthquake hit Nicole Robert’s house. But the root cause of all the damage to her home in Ottawa’s Copeland Park neighbourhood is a maple tree in her front yard. Specifically, the tree’s roots. “The front of my house sank, and the brick became separated from my foundation. The house is cracked. There is enough force to crack through my brick, which I guess when that happens, it’s a substantial force,” Robert said. Robert noticed last summer that her house started shifting when doors wouldn’t stay closed and windows could not open. Upon further inspection, she found major cracking and separation along her foundation and brick siding. She brought in three different engineers to assess why it was happening. “They determined that the cause of the movement was trees. The tree roots sucking the moisture out of the ground,” said Robert. “[The roots] can’t go that way because of the street, there’s no water. So where are they getting pushed to? Well, they’re getting pushed back to my home…”

New York City, The Wall Street Journal, June 16, 2026: Vultures Are Stinking Up This North Carolina Town. Locals Want Justice.

These days, you have to watch where you step in parts of this picturesque hamlet. Those white splashes on the sidewalk aren’t fresh paint. They’re vulture poop. Lots of it. Large groups of black vultures have taken up residence in town, covering the quaint historic district in feathers and foul-smelling excrement. Poop was so thick beneath one tree that people slipped on the sidewalk when it rained. When public-works crews went to hose down the area, they couldn’t complete the job. The smell was so overwhelming that workers started retching. Now, the malodorous mess has led to legal squawking between the town and two of its residents. In March, the Town of Hillsborough sued Kenneth and Linda Ostrand, demanding they stop feeding a large group of the black vultures roosting on their property…

Real Simple, June 16, 2026: 6 Trees You Should Never Plant in Your Yard, According to the Experts

Outfitting your yard with beautiful flowers, shrubs, and trees comes down to far more than aesthetics alone. Often, the best choices are low-maintenance plants that are native to the environment, thrive brilliantly on their own, and (as a nice bonus) show off with some pretty foliage. This is true of anything you add to your landscaping, but trees require an extra level of scrutiny to ensure they pass the backyard vibe check. Once established, they’re far more difficult to remove, and their larger canopies can lead to a lot more maintenance compared to, say, a knee-high shrub. We spoke with arborists and landscapers about which trees are bad choices for your yard so you can spare yourself the headache. Despite its name, the Tree of Heaven isn’t exactly a homeowner’s delight. Not only is it intrusive both by seed and sucker, but it can become unwieldy and very difficult to control, warns Tammy Sons, landscaping expert and founder of TN Nursery. But wait, it gets worse…

Honolulu, Hawaii, Spectrum News, June 15, 2026: Repellent offers new hope in battle against rapid ohia death

Forestry officials are pinning their hopes for containing the spread of rapid ohia death on a newly developed beetle repellent known as SPLAT Verb. ROD is a fungal disease that has killed upwards of a million ohia trees on Hawaii Island since it was first detected in Puna over 15 years ago. The disease has also appeared on Kauai, killing about 1,000 trees there. SPLAT Verb, developed over five years by forest entomologist Kylle Roy with the U.S. Forestry Service Health Protection Branch, works by repelling ambrosia beetles, which burrow into diseased trees and spread ROD through their frass (chewed, undigested wood and excrement). Specifically, the repellent emits a pheromone that discourages the beetles from burrowing into the trees, ultimately preventing the release of active fungal pathogens into the environment. Personnel from the Department of Land and Natural Resources’ Division of Forestry and Wildlife and the USFS have applied SPLAT Verb to ohia trees killed by ROD as well as healthy ohia in the Kokee State Park area over the last few months…

Boca Raton, Florida, Florida Atlantic University, June 15, 2026: Researchers find trees can shield homes from storms

Florida International University researchers found that some of the most common trees in Florida can significantly shield homes from extreme wind, decreasing suction forces applied to critical regions of the roof by as much as 50%. The findings were recently published in the Journal of Wind Engineering and Industrial Aerodynamics. The urbanized part of Miami-Dade County is home to an estimated 36 million trees, and city planners want even more in the years to come. About 20% of Miami-Dade County is covered by the branches and leaves of trees, known collectively as the urban tree canopy. For homeowners, the canopy can provide shade and protection, but during hurricanes trees can also become hazards. So, what exactly are all these trees doing during storms? Which trees are more likely to become hazards, and which help shield homes from wind? To answer these questions, Amal Elawady, an associate professor in the Civil and Environmental Engineering Department, Haitham Ibrahim, a postdoctoral associate, and Fouad Elazaka, a Ph.D. candidate, gathered data on more than 40,000 trees across Florida. They then tested how a set of the most common trees in Florida interact with extreme wind and nearby homes at FIU’s Wall of Wind, a world-leading facility capable of simulating a Category 5 hurricane and conducting full-scale testing…

London, UK, The Guardian, June 13, 2026: Trees may store less planet-heating carbon than hoped, study suggests

Trees may not be able to store as much planet-heating carbon as hoped, a study suggests, with researchers finding photosynthesis does not always lead to wood growth. Scientists studied 137 sites across the US and found trees stopped growing months before the point in the year at which photosynthesis stopped. Forests are a vital defence against climate breakdown but their power depends in part on how much carbon dioxide they can convert into wood, which keeps the planet-heating molecule out of the atmosphere for decades and centuries. Other uses of carbon are typically shorter lasting…

New York City, The New York Times, June 13, 2026: ‘Witness’ Tree Outside Abraham Lincoln’s Former Home Irreparably Damaged

Severe storms on Thursday irreparably damaged what is believed to be the last remaining “witness” tree at a home in Springfield, Ill., dating back to the time that Abraham Lincoln lived there. According to a National Park Service employee, the tree, an American linden, was damaged by winds, which gusted to at least 60 miles per hour. Pictures posted to social media show the tree with its upper half toppled over. Lincoln bought the home in January 1844 and lived there for 17 years. During that time, he set up his own law practice, welcomed and buried his second child, was elected to the House of Representatives and eventually to the White House in 1860. He left the home for the White House early in 1861…

Yahoo Life, June 11, 2026: Would you go to war over an 80-foot elm? The backyard battles tearing neighbors apart — and delighting the internet.

An intriguing question: What do Chris Pine, William H. Macy and a suburban librarian have in common? Answer: They’ve all been entangled in messy, costly disputes over … trees. Each of these three people have been involved in lawsuits over, you guessed it, the finer points of foliage — to the tune of tens of thousands to tens of millions of dollars. It turns out that the leafy corner of the yard is often the most contentious spot in the neighborhood, with people passionately sparring over property lines, esoteric regulations and who’s blocking the view. There are plenty of spectators too, with strong opinions — the subreddit r/treelaw has more than 175,000 weekly visitors who come to ask their questions, make tree puns and, virtually, chant “TREE! LAW! TREE! LAW!…”

Albuquerque, New Mexico, New Mexico Political Report, June 14, 2026: Tree deaths in New Mexico tripled in 2025 as warming summers increases insects, stress on forests

Tree deaths tripled in New Mexico during the second warmest year on record, according to new analysis of the state’s forest health from the U.S. Forest Service and New Mexico Forestry Division. 2025 saw a rapid expansion of bark beetle-caused deaths with 209,000 acres of conifers now dead — up from 67,000 acres in 2024 — mostly on national forest land managed by the USFS. “Fall and winter temperatures remained warmer and drier, allowing bark beetles to remain active late in the season,” the report concluded. “Large areas of ponderosa and piñon forests saw significant mortality from bark beetles, especially in the southern part of the state. Areas near burn scars from large wildfires continue to experience bark beetle attack on residual trees. If there is good news in the report, it is that a virus infecting some of the most common insects causing defoliation greatly reduced the number of acres showing a loss of leaf or needle coverings. Insect infestations of the western spruce budworm, Douglas-fir tussock moth, western tent caterpillar, needleminers and scale insects was down 51% from 327,000 acres in 2024 to 160,000 acres in 2025…”

Pasadena, California, Local News Pasadena, June 14, 2026: PUSD Tree Removal Plan Sparks Outcry Over Transparency and Environmental Impact

Pasadena holds a long-standing designation as a Tree City. Administered by the Department of Public Works, the city actively manages a diverse urban forest comprising more than 60,000 public trees spanning dozens of species. The city uses a Master Street Tree Plan to carefully select which tree types are planted on specific parkways and tracks and to closely monitor tree care. For generations, Pasadena has been a community defined not only by its historic architecture and beautiful neighborhoods, but by the towering canopy of mature trees that line its streets, parks, and school campuses. That is why many residents were stunned last Wednesday to find construction crews preparing to remove what appeared to be healthy, mature trees from the campus at San Rafael Elementary School. The Pasadena Unified School District (PUSD) has instituted a plan to remove approximately 193 trees across 11 school campuses as part of a soil remediation project tied to post-Eaton Fire environmental cleanup efforts…

Space Daily, June 14, 2026: Beneath Oregon’s Blue Mountains, a single honey fungus has been spreading through the roots of the forest for thousands of years, now covering nearly 10 square kilometres.

Beneath the Blue Mountains of eastern Oregon, in the Malheur National Forest, a single honey fungus has been spreading through the roots of the forest for thousands of years. It now covers nearly ten square kilometres. Most of it is invisible. What you see at the surface is indirect: clusters of trees dying in the same way, and, for a few weeks in autumn, honey-coloured mushrooms pushing up through the soil. The organism itself is the network underneath. It is one of the strongest contenders for the largest living thing on Earth. That phrasing is deliberate, and we will come back to it, because the title is more contested than the headlines suggest. The fungus is Armillaria ostoyae, a honey fungus and a root pathogen, the kind of organism a forester first meets as a disease rather than a wonder. It was spotted in the Malheur in 1988 by a Forest Service worker, Greg Whipple, who put its extent at about 400 acres. That turned out to be a large underestimate…

Case of the Day – Monday, June 22, 2026

Posted on June 22, 2026 by TLRoot tagged.

UNDER A SPREADING CHESTNUT TREE

You think you got it bad, 2026ers? You dumped your Spacex stock to invest in Spirit Airlines? You went long on Sleep Number stock figuring everyone has to slumber. Nest egg starting to smell a little rotten?

The year 1929 was bad for a lot of people, too, with the stock market crash wiping out millions. It started just as badly for one Lou Cotillo (not to be confused with Lou Costello) when a chestnut tree on suburban land being developed by a real estate firm crashed onto the road. Under the spreading chestnut tree was Mr. Cotillo’s car, which, unfortunately enough, contained him and a passenger.

It turned out the chestnut in question, a rather big specimen, had been dead for a few years. However, the Court noted, “beyond its deadness, [it] bore no exterior evidence of decay.”

Deadness? Is that even a word?

Maybe not, but the jury had little trouble determining that the tree’s obvious “deadness” made the real estate developer liable for the accident. Brandywine appealed, arguing that the trial court should have taken the case away from the jury and thrown it out. It argued that, as a matter of law, it wasn’t liable for the results of a tree’s natural condition (that is, it’s “deadness”).

Lou Costello (not Lou Cotillo)

Applying what little Delaware law the United States Court of Appeals for the Third Circuit could find, the appellate panel upheld the jury verdict. The Court held that responsibility for an owner’s property is one of the burdens of ownership, and, as a landowner has the right to enjoy his property unhampered by the actions of his neighbor, his neighbor – whether a landowner or a highway traveler – is similarly entitled. The trial court told the jury that Brandywine had a duty to keep its property from being a source of danger to the travelers on the highway “to the extent that reasonable care can guard against” the danger. The jury decided that Brandywine had breached its duty. Game, set and match.

This case was an early decision in the general trend of imposing a duty of reasonable care on non-rural landowners. The issue in negligence cases such as this one is always the nature of the duty owed by the defendant. Defendants such as Brandywine Hundred Realty (in this case) want the duty to be as minimal as possible, while plaintiffs want the jury charge to describe a duty of the first water. From the “trees will be trees” laissez-faire approach of the 19th century, where owners generally had no duty whatsoever to protect passers-by from hazardous trees to a modern view that while not guarantors of their trees, property owners had a duty to correct problems of which they had actual or constructive knowledge.

Brandywine Hundred Realty v. Cotillo, 55 F.2d 231 (3^rd Cir. 1931). On a dark winter night in January 1929, Mr. Cotillo and a passenger were driving forested suburban land owned by Brandywine Hundred Realty, Inc. A chestnut tree, standing about 10 feet from the road, fell suddenly, crushing Mr. Cotillo’s car and killing his passenger. The tree had been dead for four years, but “beyond its deadness, bore no exterior evidence of decay.”

Cotillo sued, and the case went to trial. The real estate company asked the judge to take the case from the jury and find in its favor as a matter of law because the natural condition of the tree caused the accident, and it had no duty to Mr. Cotillo. The judge disagreed and instead told the jury that Brandywine had a duty to exercise reasonable care in the use of its property, so as not to harm neighboring landowners or motorists. The jury found for Mr. Cotillo.

Brandywine appealed, arguing that the trial court had misdefined its duty.

Held: The trial court was correct in its definition of Brandywine’s duty. The appellate court said that “[a]fter all is said and done, this case turns on the application of the time-honored principle of law, ‘sic utere tuo ut alienum non laedas’–so use your own as not to injure another.” It held that Mr. Cotillo had a right to use the highway and that Brandywine had the duty “to so use his property on his own land that it shall not cumber the highway and endanger the safety of those using it …” It agreed with the trial court’s charge to the jury that “ the owner of property abutting on a public highway is under a duty to keep it from being a source of danger to the public or to the travelers on such highway to the extent that reasonable care on his part can guard against.”

‘Cumber’? Is that even a word?

The Court of Appeals also concurred that the fact the tree had died of natural causes, rather than because of Brandywine’s conduct, had no effect on the realty company’s duty. Regardless of how the tree ended up in a condition of “deadness,” if its deadness was known by Brandywine or could have been known “by the exercise of ordinary case … then it became the duty of the defendant to exercise reasonable care and diligence to prevent the tree from falling and injuring those who might have occasion to use the public highway.”

Thus, the question of Brandywine’s alleged negligence was for the jury to pass upon. It did so, and found negligence. The Court found no basis for disturbing that finding.

As for “deadness” and “cumber” being actual words – the dictionaries give the Court a pass on both of them (although it admits “cumber” is obsolete). But as far as I’m concerned, the jury’s still out on those two…

The dismissal of this ridiculous suit was upheld.

– Tom Root

Case of the Day – Friday, June 19, 2026

Posted on June 19, 2026 by TLRoot tagged.

DUMB ADULT STUNTS

All right, we’re going to use the summer to get into shape. One-two-one-two. Time to blow out the mental cobwebs that form from hot days, warm nights, cool beer and cold ice cream. Time for a little sober reality to settle in.

We’ll start with a simple warm-up – considering two dumb adult stunts. The first stunt was Tom Alexson’s ill-advised decision, when he saw a tree branch laying on his bike path, to ride by and smoothly push it out of the way with his hand as he passed. Kids, please don’t attempt this at home! Of course, it didn’t work, and he crashed into and over the limb, hurting himself badly.

The second dumb adult trick was Tom’s unwillingness to accept the blame for his own stupidity. He didn’t, of course. Who does, these days? Instead, he sued the White Memorial Foundation, which owned the land and museum that stood on it.

The Foundation defended under the Connecticut Recreational Use Act, asking that the case be dismissed because no fee was charged for use of the Foundation property, and Tom was on the land for a recreational purpose. Tom’s crafty mouthpiece argued that the Foundation didn’t qualify because it charged a fee to enter the museum. But the Court ruled that the Foundation didn’t charge Tom to ride his bike around the grounds, and that was good enough. After all, he didn’t fall in the museum attic.

A-ha, the lawyer cried, riding a bike isn’t listed as a specific recreational activity in the statute. Horse hockey, the Court said. The statute clearly doesn’t limit recreational activities to the one listed. Lance Armstrong, after all, thinks bike riding is very recreational (and for years thought that taking banned drugs was not doping).

Yeah, argued Tom’s lawyer, but the Foundation’s failure to warn Tom of the danger was willful or malicious. Prove it, the Court said, with something more than Tom’s rather slanted opinion that it was so.

The case was tossed, as it should have been. Dumb adult stunts, indeed.

Alexson v. White Memorial Foundation, Inc, 2008 Conn. Super. LEXIS 567, 2008 WL 803423 (Conn.Super.Ct., Mar. 5, 2008). Workmen for the White Memorial Foundation were notified that a tree had fallen across a roadway on Foundation property. The workmen began to cut up the fallen tree, but failed to complete the task before Tom Alexson – who was riding his bicycle on the White property – saw a part of the tree still blocking the roadway and decided that he could push the obstruction aside as he passed. Instead, he collided and badly hurt himself.

Tom sued, alleging that the Foundation was careless and negligent in only partially removing the branch from a portion of the roadway and that the Foundation’s failure to warn or guard against the obstruction was willful and intentional. The Foundation moved for summary judgment on the ground that General Statutes §52-557g, known as the recreational land use statute, made the Foundation immune.

Held: The Foundation was protected by the Connecticut Recreational Use Act. The Act provides that a landowner is immune from liability for simple negligence where: (1) the defendant is the owner of the land in question; (2) the defendant has made all or part of the land where the plaintiff was injured available for use to the public free of charge; and (3) the plaintiff, at the time that he was injured, was using the land for a recreational purpose.

Tom argued that there was a genuine issue of material fact as to whether the Foundation made the land available to the public free of charge. In addition, Tom alleged that there was a genuine issue of material fact as to whether the exception to the recreational land use immunity statute, codified in §52-557h, applied to the defendant because, as alleged by the plaintiff, the defendant willfully and maliciously failed to warn against a dangerous and defective condition.

The Foundation said the land on which Tom was injured was always available for recreational use to the public without charge. Tom admitted that on the day he was injured, he was not charged by the Foundation and conceded that he previously had been charged a fee only when he went inside the museum. The Court found that there was thus no genuine issue of material fact that the defendant Foundation made the part of the property on which Tom was injured available, free of charge, to the public.

The final prong of the statute required that the land be available for recreational purposes. Section 52-557f(4)(a) provides a list of activities that constitute a “recreational purpose,” and the list doesn’t include bicycle riding. The Court observed, however, that, the statute clearly stated that “[r]ecreational purpose includes, but is not limited to, any of the following …” It was evident, the Court held, that the enumerated activities set forth in the statute were not exclusive.

Riding a bicycle, the Court said, fell within the penumbra of activities considered “recreational” for the purpose of the statute. Therefore the Foundation satisfied the third prong of the statute. Thus, the defendant is entitled to statutory immunity unless Tom could show the Foundation had engaged in a willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. The Court said the phrase “willful or malicious” meant conduct that must encompass both the physical act proscribed by the statute and its injurious consequences.

Willful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse. Its characteristic element is the design to injure either actually entertained by the defendant or implied from the conduct and circumstances. Alexson’s conclusory statements in his complaint, coupled with the conclusory statements in his affidavit (the admissibility of which the Court found to be dubious at best) did not raise a genuine issue of material fact. The Court said the complaint was “bereft of the factual predicate necessary to lead a reasonable person to infer that the workmen intended to injure passersby, and this plaintiff in particular, by their actions.”

The dismissal of this ridiculous suit was upheld.

– Tom Root

Case of the Day – Thursday, June 18, 2026

Posted on June 18, 2026 by TLRoot tagged.

IT WAS A DARK AND STORMY NIGHT …

Snoopy made the opening line of Paul Clifford one of the most famous in the history of pedestrian writing.

Or so begins Edward George Bulwer-Lytton’s 1830 novel, Paul Clifford, the opening line now famous thanks to Snoopy in the comic strip Peanuts and the fiction contest that bears the author’s name. It’s a bit ironic: we are enjoying as much light over the next few days as any time this year (the solstice arrives at 4:24 am EDT on Sunday).

Yet today, we’re going to look back on a really dark and stormy night when the aptly-named farmer Hay drove his truck through the Ohio countryside, past the golf course owned by a local lodge of the Benevolent and Protective Order of Elks.

On this particular dark and stormy summer night, an oak tree by the side of the road, weakened and decayed after a lightning strike several years before, fell on Farmer Hay, bringing to a sudden end his time on this mortal coil. Subsequently, his estate sued the Elks, claiming the Lodge had been negligent in failing to do anything about the hazardous tree, despite the fact that its decrepit state was well known to the duffers.

Relying on rather a thin precedent, the trial court threw out the Hay descendants’ claim, holding that a rural landowner had no duty to protect travelers on the highway from the natural condition of trees on his or her property. The matter reached the Ohio Supreme Court in 1951.

The Supreme Court began with the observation that the law permitted every landowner to make such use of the person’s property as he or she wishes, provided it is used in such a manner as not to invade the rights of others. It then added flesh to that general rule, holding that while a rural landowner has no duty to inspect trees adjacent to a highway, when he or she has knowledge – actual or constructive – of a patently defective condition of a tree which may injure a traveler, the landowner must exercise reasonable care to prevent harm to people lawfully using the highway.

While there was little precedent in other states for the duty to act defined by the Hay court, the decision hardly came as a surprise. The American Law Institute’s Restatement of the Law of Torts had previously held that while “[n]either a possessor of land, nor a lessor, vendor or other transferor thereof, is subject to liability for bodily harm caused to others outside the land by a natural condition of the land other than trees growing near a highway.” But it contained an important caveat. The Restatement – which is written with a goal of identifying trends in the law – noted that its drafters expressed “no opinion as to whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition.”

The ALI presciently foresaw evolution of the duty defined in Hay and cases in other jurisdictions that followed it. The Hay rule has since become a standard of care imposed by virtually all states.

These things happen ... but the landowner may be liable, depending on what he or she knew and when he or she knew it.

These things happen … but the landowner may be liable, depending on what he knew and when he knew it.

Hay v. Norwalk Lodge No. 730, B.P.O.E, 92 Ohio App. 14, 109 N.E.2d 481 (Court of Appeals, 6th Dist., 1951). Farmer Hay was driving his truck on New State Road when a large limb or limbs fell from a tree located on land owned by the local chapter of the Benevolent and Protective Order of Elks. The limb struck the top of the cab, injuring Mr. Hay so that he lost control of the truck, crashed into a tree, and died as a result of his injuries.

Mr. Hay’s estate sued, alleging that the tree had been struck by lightning several years before, and was extensively damaged and weakened as a result. The complaint said the damage to the tree was visible and apparent for several years, and that after the tree was struck by lightning, apparent natural processes of decay set in and further weakened the tree and its branches, which extended over and above the traveled portion of the road. Finally, the complaint averred that the Elks knew that portions of the tree extended over the road, that it had been struck by lightning, and the tree was weakened. The complaint concluded that the Elks had neglected to remove or brace the damaged portions or to do anything to make the tree secure, and failed and neglected to give notice to motorists of the danger.

The trial court held that the Elks had no duty to Mr. Hay to alert him as to the danger tree, or to remove or trim it. It threw out the complaint. The matter ended up before the Ohio Supreme Court:

Held: The Supreme Court reversed, and sent the case back for trial. It held that every person may make such use as he or she will of real property, provided he or she uses it in such a manner as not to invade the rights of others. But in the case of rural landowners, this means that although there is no duty imposed upon the owner of property abutting a rural highway to inspect trees or to ascertain defects that may result in injury to motorists, an owner having actual or constructive knowledge of a patently defective condition of a tree which may result in injury to motorists must exercise reasonable care to prevent harm to people lawfully using the highway.

The Court noted that the only Ohio holding even close to its conclusion in this case was one in which the owner of property upon which a tree was situated was held to have the duty to exercise ordinary care for the safety of pedestrians using the sidewalk. However, the American Law Institute had noted in Restatement of the Law of Torts that its members were split, and thus had no opinion on “whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition.”

Public policy opposes burdening rural landowners with the duty of inspecting their property for hazard trees ... but if the landowner knows there's a problem, he or she should attend to it.

Public policy opposes burdening rural landowners with the duty of inspecting their property for hazard trees … but if the landowners know of a problem, they should attend to it.

The Ohio Supreme Court observed that the law imposes upon every member of society the duty to refrain from conduct of a character likely to injure a person with whom he comes in contact and to use his own property in such a manner as not to injure that of another. The justices reviewed cases from other states, which led the Court to the “conclusion that in the absence of knowledge of a defective condition of a branch of a tree which in the course of natural events is likely to fall and injure a person in the highway, no liability attaches to the owner of the tree. On the other hand, where the owner has knowledge of the dangerous condition of the tree or its branches, it is his duty to exercise reasonable care to prevent the fall of the tree or its branches into the highway.” The Court agreed with a Minnesota case that held that it was unreasonable to require the owner of rural land to inspect his property with regard to naturally arising defects, because of the burden thereby imposed upon the owner of large and unsettled tracts of land. However, the Court rejected the Minnesota case’s conclusion that the owner was not liable even if he had actual knowledge.

The Ohio Supreme Court instead followed dictum from a Federal court decision that “an owner of property abutting a highway has an obligation to use reasonable care to keep his premises in such condition as not to endanger travelers in their lawful use of the highway. If he fails to do so and thereby renders the way unsafe for travel, he should be liable therefor. It is, therefore, concluded that, although there is no duty imposed upon the owner of property abutting a rural highway to inspect growing trees adjacent thereto to ascertain defects that may result in injury to a traveler on the highway, an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway. If the danger is apparent, which a person can see with his own eyes, and he fails to do so with the result that injury results to a traveler on the way, the owner is responsible because in the management of his property, he has not acted as a reasonably prudent landowner would act.”

Because the Hay Estate’s filing alleged the Elks had actual knowledge of the decayed tree, the complaint made out a claim that – if proven – would entitle the Estate to recover. The case was reinstated and sent back to the trial court.

– Tom Root

Case of the Day – Wednesday, June 17, 2026

Posted on June 17, 2026 by TLRoot tagged.

THE STIG

The Stig

Jim and Cindy Muncie found oil on their land.

Sadly, this was not a cause for champagne. The oil was #2 heating oil, a thousand gallons of it that had come spilling down the hill to flood their house. It was a mess.

The estate of the deceased woman whose oil tank had ruptured settled a federal court suit for $60,000, the restoration amount the Muncies figured it would take to clean up the slick. But as soon as they got the $60,000, the Muncies – deciding that cleanup compensation just wasn’t enough – sued the estate in state court for “stigma damages.”

Stigma damages, which I caution fans of the long-departed Top Gear have nothing to do with The Stig (who is even longer departed but not forgotten), are pretty much what they sound like. Remember how you felt when you learned that your childhood hero, Captain Kangaroo, did not fight beside Lee Marvin in the Battle of Iwo Jima? And that he was not really a captain and had never been a kangaroo? After that, there was a stigma attached to ol’ Cap that even Dancing Bear could not erase.

Properties can be like that. Considering buying Yellowstone Park from a federal government that’s a little strapped for cash to pay Medicare and Social Security for us baby boomers? How much you’re willing to shell out for a national treasure might be affected by knowing that you’re standing in the caldera of one of the biggest volcanoes on Earth. On a smaller scale, a buyer might hesitate to write a check knowing that his or her prospective home had been steeped in hydrocarbons, even if there was no tangible evidence that the mishap had ever occurred.

We recently focused on restoration costs being awarded when those costs exceeded the reduction in value suffered due to a trespass and subsequent damage. Today’s case is the obverse of that coin, where the restoration costs may not be quite enough to fully pay for the loss suffered, a loss due to the “stigma” attached to the property because of the damage.

Muncie v. Wiesemann, 548 S.W.3d 877 (Supreme Court, Kentucky, 2018). One cold December day, a faulty underground home heating oil tank on an unoccupied property cracked open, spilling 1,000 gallons of fuel oil. The oil flowed downhill, flooding Cindy and Jim Muncie’s at the bottom of the hill.

Although Patricia Wiesemann, who was handling the affairs of the estate that owned the unoccupied property, hired contractors to remove the heating oil and prevent further contamination, the leaking continued to damage Jim and Cindy’s place. The contamination caused the Kentucky Environmental Response Branch to declare an environmental emergency, implementing emergency procedures to “limit any human health or environmental impacts” at the Muncie residence.

Litigation ensued. In September 2013, the parties entered into a partial settlement. The settlement allocated $60,000 to the Muncies for restoration costs, intended to remedy actual damages to their property. In return, the Muncies agreed to dismiss all claims against Wiesemann and the Estate, except for a few reserved claims. Prominently, the partial settlement reserved “claims by the Muncies asserting the diminution of the value of their real estate due to the stigma resulting from the contamination…”

Stigma damages, as the name implies, are damages suffered from diminished value to property caused by a negative perception of a site and call for compensation for the “stigma” to satisfy the fundamental concept that an injured party must be made whole. A perception of harm may be all that is needed to support an award of stigma damages. Such damages are intended to compensate for loss to the property’s market value resulting from the long-term negative perception of the property in excess of any recovery obtained for the temporary injury itself. Were this residual loss due to stigma not compensated, a plaintiff’s property would be permanently deprived of significant value without compensation.

A month after signing the settlement, the Muncies sued Pat in state court for negligence, trespass, and permanent nuisance. Pat filed a motion for summary judgment, arguing that the partial settlement barred the state action because the Muncies were fully paid for the actual damages the contamination caused to their property. She claimed that, as a matter of law, stigma damages can only be recovered when paired with an actual damages award.

The trial court said that while stigma damages can be considered as part of restoration damages – the cost to repair the property – stigma damages cannot be awarded separately from restoration damages. Because the Muncies settled their restoration claim in the partial settlement agreement, the trial court held that no further claim existed. The Muncies’ claim for stigma damages was dismissed.

The Muncies appealed.

Held: Stigma damages can be awarded in Kentucky, and that award can be separate from restoration damages.

Pat complained that because the $60,000 restoration payment was accepted by the Muncies in the partial settlement agreement, they could not now separately seek stigma damages for the diminution in value of their property. To do otherwise would result in a “double recovery” for the Muncies.

The Supreme Court disagreed. In order to recover stigma damages, it held, plaintiffs must have suffered actual property damage. If injured parties receive repair costs that make them whole, then they cannot recover stigma damages that would compensate them above the diminution in their property’s value. But if restoration damages for repair costs are insufficient to make the injured party whole, then a recovery for stigma damages up to the monetary value of the diminution may be proper.

In other words, the Court said, damages recoverable for an actual injury to real property are equal to the sum of the costs of repair and the difference in fair market value of the property before the injury and after it has been repaired. If there is a difference in fair market value after the physical injury has been repaired, then that is the appropriate measure of stigma damages.

Stigma damages measure the amount by which a real property’s value is diminished in excess of repair costs. Here, once the oil was removed from the Muncies’ property and the environmental response team departed, stigma was what remained, and it – by its nature – it cannot be repaired.

“Unquestionably,” the Court presciently ruled, “the devil is in the details for these types of cases. We can only provide broad principles of law. The method for computing damages is straightforward but can be difficult to understand. They can also be difficult to prove.” However, when property is damaged by trespass, the degree of the damage is determined at the moment such injury is completed. The recovery shall be the difference in value of the property before the injury occurred and the value immediately after it is completed. The after-value shall take into account any stigma damages. Damages will also include the cost of any repair or remediation.”

Because there was no evidence taken on the stigma damage, if any, suffered by the Muncies, the Supreme Court of Kentucky sent the case back for a factual determination as to whether they were fully compensated for the diminution in fair market value of their property by the $60,000 partial settlement for repair.

– Tom Root

Case of the Day – Tuesday, June 16, 2026

Posted on June 16, 2026 by TLRoot tagged.

ASSUMPTION OF RISK

Today we have yet another cautionary tale from the annals of “I got hurt, so I need someone to sue.”

Dan was a healthy 26-year-old recreational-football-league kind of guy. He was playing flag football with some buddies in the Dome Football League, using an indoor facility owned by the Town of Tonawanda. Of course, you need to mark the boundaries of the football field, and — necessity being the mother of invention — someone used a softball glove as a marker.

Dan stepped on the glove during a moment of football derring-do, and he was injured. So of course, he threw a yellow hankie at the Football League and the Town. The Town and League threw their own red flags, asking the booth, that is to say, the trial court, to review and throw out the case.

The trial court refused.

The appellate court, however, penalized Dan 15 yards and loss of down. When someone engages in an injury-prone event, like flag football, he or she (usually “he” in the case of football, but there are exceptions), consents to the reasonably foreseeable consequences of the activity. There are always sideline markers, the Court observed, and Dan didn’t show that using a softball mitt had created a danger any greater than using the usual cones or plastic flags employed by the League.

So what does this have to do with trees? When people engage in outdoor activities in which they come in contact with trees, roots, stumps and holes in the ground, it’s always a fair question whether they assumed the risk when they elected to ski, mountain bike, run a 5k or whatever they were doing at the time.

If you’re a Dan (or a Danielle), be prepared to prove that the hazard you confronted was something over and above what you could reasonably expect to encounter in the activity. If you’re playing football, expect to be hurt. You’ll rarely be disappointed.

Gardner v. Town Of Tonawanda, 850 N.Y.S.2d 730 (N.Y.A.D. 4 Dept., 2008). Dan Gardner, a 26-year-old flag football enthusiast, slipped and fell on a baseball glove that he and his buddies were using as a sideline marker during a recreational indoor flag football game organized by the Dome Football League and played in a facility owned by the Town of Tonawanda. Dan was experienced in playing recreational flag football on the indoor artificial turf field, and he knew the sidelines were marked with orange plastic cones and that the referee had discretion to use other markers as well. Dan said he was unaware that a baseball glove was being used as a sideline marker, but he didn’t have any evidence supporting his contention that the risk of slipping on the baseball glove was greater than the risk of slipping or tripping on the cones or plastic flags usually used as sideline markers. But that didn’t stop him from suing the Football League and the Town. The defendants moved for summary judgment, but the trial court denied it.

Maybe so, but the big crayon assumed the risk.

Held: Summary judgment was granted to the Town, and the case was dismissed. The Court concluded that Dan assumed the risk of the injuries that he sustained because the use of the baseball glove as a sideline marker didn’t create a dangerous condition over and above the usual dangers that are inherent in recreational flag football.

The doctrine of primary assumption of the risk generally constitutes a complete defense to an action to recover damages for personal injuries and applies to voluntary participation in sporting activities. As a general rule, the Court said, participants properly may be held to have consented by their participation to those injury-causing events which are known, apparent or reasonably foreseeable consequences of their participation. Such injury-causing events include risks inherent in and arising out of the nature of the sport generally and flowing from such participation.

– Tom Root