Case of the Day – Thursday, April 23, 2026

Posted on April 23, 2026 by TLRoot tagged.

DIVING INTO THE SHALLOW END

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

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

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

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

Not all shallow water is so well labeled …

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

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

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

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

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

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

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

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

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

– Tom Root

And Now The News …

Posted on April 23, 2026 by TLRoot tagged.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case of the Day – Wednesday, April 22, 2026

Posted on April 22, 2026 by TLRoot tagged.

DOG BITES MAN

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

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

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

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

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

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

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

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

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

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

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

– Tom Root

Case of the Day – Tuesday, April 21, 2026

Posted on April 21, 2026 by TLRoot tagged.

ADVERSE POSSESSION BY COMMITTEE

Weyerhaeuser Co. bought a big old farm in southeastern Oklahoma for timber operations back in the 1980s. No sooner had it harvested its last tree than the next-door neighbor, Brantley, started taking advantage of the absentee owner.

Not so fast, Mr. Brantley ... it's not quite that easy.

Not so fast, Mr. Brantley … it’s not quite as easy as all that.

Over a 20-year period, Brantley claimed, he had grazed his cattle on the place, even running off hunters authorized to hunt there and denying access to Oklahoma Wildlife officers who had a deal with Weyerhaeuser to open the place as a recreation area. But the farm was a big place, and there were a lot of players. Brantley’s father grazed his cattle on the place, too, for a while, but unlike his boy, Père Brantley had a lease from Weyerhaeuser. Brantley’s brother — cut from the same cloth as Brantley himself — grazed his cattle on the place and claimed a piece of it, too. Even Oklahoma State University had a lease from Weyerhaeuser to use part of the farm as a research facility.

Finally, the time came when Weyerhaeuser was ready to resume timber and gravel operations. it found Brantley to be underfoot, so the company sued him in trespass to remove him from the place. Brantley claimed he owned the place under the doctrine of adverse possession.

No, the Court said, he did not. Adverse possession requires, among other things, that the possession of the land be exclusive. Brantley’s possession of the place was more communal, the Court observed, with other actors coming and going all the time. You just can’t have a committee of people commonly possessing a place adversely. Where two people have entered onto a piece of land, the one who has the better title is the one in possession. And in this case, that was the guy who occupied the land as the lessee. Brantley’s Dad, who had leased the land from Weyerhauser, was the one in possession. Not his piratical son.

Weyerhaeuser Co. v. Brantley, 510 F.3d 1256 (Ct. App. 10th Cir., 2007). Sherrill Farm is located in a scenic portion of southeastern Oklahoma, along the Mountain Fork River and near the Arkansas border. Weyerhaeuser had owned the farm since the early 1980s, at least the entire period of the dispute. Young Carl Brantley claimed he had begun grazing livestock on Sherrill Farm as early as 1980-81, although he had never had permission to use it. Since then, Brantley said he had built corrals, feed troughs, and fences on the property. He also removed brush, applied fertilizer, harvested wheat, and maintained roads. Although he installed a locked gate on the farm in the early 1980s, he never paid property taxes on the land. Brantley claimed his adverse possession of Sherrill Farm began in the winter of 1987-88 after Weyerhaeuser last harvested a stand of trees on the property.

During the years Weyerhaeuser used the area for its timber operations, it permitted others to use Sherrill Farm. Brantley’s father had a grazing license on Sherrill Farm from 1983 to 1992. In 1987, Weyerhaeuser leased parts of Sherrill Farm to Oklahoma State University. OSU planted two research sites in the southern part of Sherrill Farm but made no use of the northern half. OSU complained to Weyerhaeuser about damage to its research plantations caused by livestock and built a fence to protect them, but it did not seek to have Brantley’s cattle removed from Sherrill Farm entirely. OSU asked Brantley to cease grazing in the leased area, but Brantley was uncooperative. OSU also maintained its own locked gate to Sherrill Farm. Because of this alternative access, Brantley’s gate never prevented OSU or Weyerhaeuser from accessing Sherrill Farm.

In 1998, Weyerhaeuser and the Oklahoma Department of Wildlife Conservation included Sherrill Farm in the Three Rivers Wildlife Management Area. According to the agreement, the general public could access Sherrill Farm for hunting, fishing, and other recreation. Brantley’s locked gate prevented a state wildlife officer from accessing Sherrill Farm during some visits. Brantley testified he saw hunters on the property during this time and asked them to leave. In 2003, Weyerhaeuser granted an easement to another landowner to access her property across Sherrill Farm, but Brantley refused to allow access to the easement through his gate.

You can’t adversely possess by committee …

Oklahoma State’s lease terminated in 2004. Weyerhaeuser had to resume timber production and begin gravel mining, but Weyerhaeuser said Brantley’s presence delayed these activities, resulting in monetary damages. In 2006, Weyerhaeuser sued Brantley for trespass.

Brantley asserted adverse possession or prescriptive easement as affirmative defenses. After a trial, the district court entered judgment in favor of Weyerhaeuser. Both parties appealed. Brantley argued he possessed the land adversely, and Weyerhaeuser complained it should have been awarded $200,000 in lost profits.

Held: Weyerhaeuser’s judgment was upheld, but not the lost profits. Under Oklahoma law, to establish adverse possession, Brantley had to show that his possession was hostile; was under a claim of right or color of title; was actual; was open; was notorious; was exclusive; and was continuous for the full 15-year statutory period.

Weyerhauser owns or controls over 7 million acres of timber in the U.S. – it knows how to give squatters the bum's rush.

Weyerhauser controls over 7 million acres of timber in the U.S. – it knows how to give squatters the bum’s rush.

The Court found that Brantley did not have exclusive use of the property for 15 years – that length of time being the Oklahoma standard (your home state’s period may vary), and thus failed to establish adverse possession of the land. During the 15-year period, Brantley’s father held a grazing lease on the property, Oklahoma State conducted activities on the property, Weyerhaeuser conducted activities such as road maintenance and gravel sampling on the property, the land was part of a wildlife area managed by the State and open to the public, horses not belonging to Brantley grazed on the property, and Brantley’s own brother also claimed grazing rights to property by adverse possession. To show exclusive possession, Brantley had to show an exclusive dominion over the land and an appropriation of it for his own use and benefit. Two persons cannot hold one piece of property adversely to each other at the same time, the Court said, and where two persons have entered upon the land, the one who has the better title will be deemed to be in possession.

However, Brantley did not have to pay the $200,000 special damages for trespass. A forest manager’s testimony that, but for the presence of Brantley’s cattle, the property owner would have netted $200,000 in profits from gravel mining — based on 150,000 tons during the first year and 300,000 tons during the second year — was held by the Court to be too uncertain and speculative to support a damage award for lost profits. But the award of $10,000 against Brantley based on Weyerhaeuser’s lost timber sales was reasonable: Weyerhaeuser had previously used the property for timber harvesting, and the property was currently suitable for planting and harvesting. Weyerhaeuser’s witness was a certified forester who had submitted an affidavit identifying the methodology for his damage calculations.

– Tom Root

Case of the Day – Friday, April 20, 2026

Posted on April 20, 2026 by TLRoot tagged.

I NEED THE MONEY, MAN

The old fence marked something … just not the boundary.

Poor (and we mean that quite literally) Mr. Hartshorne. He and next-door neighbor Coldsnow had had some disagreements about the property boundary about 25 years ago or so, and it’s fair to conclude that the Hartshornes probably don’t ask the Coldsnows over for tea and crumpets all that often.

In the late 90s, Mrs. Hartshorne went to her reward. Her death left Mr. Hartshorne saddled with debts, and he sold some of his timber to pay for it. He probably should have had his property surveyed (which would have cut into the timber profits, meager though those might be). Instead, Widower Hartshorne just told the logger that he could log to the old fence, which the Hartshornes had always thought was the property boundary.

It wasn’t. You know how these things go.

Sadly, had the timber sale been enough to cover Mr. Hartshorne’s debts, no one would ever have discovered that some of the trees he sold had actually belonged to his neighbor. But the proceeds were a little light. Thus, Mr. Hartshorne divided his property in order to sell some of it off.

When you divide property, you have to line up a surveyor to measure things out. The survey showed Mr. Hartshorne that the old fencerow was not the boundary after all.

His neighbor, Coldsnow (perhaps aptly named for all the sympathy he showed a poor widower), found out the same and realized that this meant that some of the trees Hartshorne’s logger had cut were on his land. Coldsnow sued for trespass, seeking treble damages under the Ohio treble-damages-for-timber-trespass statute. The jury agreed with Coldsnow that the cost to restore or replace the timber was $11,500.00 and that Hartshorne was reckless. The damage award trebled to $34,500.

Hartshorne complained that the proper measure of damages should have been the decrease in value of Coldsnow’s land, and anyway, he wasn’t reckless. He had just made a mistake, and regular negligence did not support treble damages under the statute.

The Court of Appeals didn’t buy it. Coldsnow’s successful conflation of a few isolated border skirmishes over an eight-year period into a boundary war convinced the Court that Hartshorne — knowing of Coldsnow’s prior aggressiveness in enforcing the boundary — should have gotten a survey. Frankly, we suspect that Mr. Hartshorne must not have cleaned up very well for court, because there’s very little in the written decision that supports a conclusion that he acted recklessly, and thus, no other reason the Court should have oppressed him so.

We don’t think much of this decision. The Court is saying, in essence, that the more unreasonable your neighbor is, the more careful you’re required to be. It certainly makes it hard to define a community-wide standard of care. Because I live next to a sweet old lady who would let me sell her front door if I wanted to, I should be held to a lower standard of reasonableness? That simply does not make sense.

Knowing that your neighbor is a curmudgeon is hardly a basis for saying that your failure to take his cantankerousness into account is reckless conduct.

Coldsnow v. Hartshorne, 2003-Ohio-1233, 2003 WL 1194099, 2003 Ohio App. LEXIS 1163 (Ct. App. Columbiana Co., Ohio, March 10, 2003). Coldsnow sued Hartshorne for cutting down some of the trees on Coldsnow’s property. Hartshorne began cutting down some trees in 1991, one of which was near the fence line between his and Coldsnow’s property. At the time, Coldsnow complained to Hartshorne about cutting down that tree, and Hartshorne stopped cutting down trees near the fence line. In 1995, Hartshorne had problems with people trespassing on his land to hunt. In response, Hartshorne bought some “no trespassing” signs and placed them all around his property. He also spray-painted orange circles on trees near the signs to bring them to people’s attention. Some of the trees he spray-painted were on Coldsnow’s property. Coldsnow complained about the signs and the spray paint to the Hartshornes. In 1997, Hartshorne’s wife died, and to pay the bills from her illness, Hartshorne decided to log and sell some of the trees on his property. He hired a forester, to do the logging and agreed to evenly split the profits with the forester.

Lawyers always advise their clients to dress well for court. Maybe Mr. Hartshorne ignored his attorney's advice. What else would account for this whacked decision?

Lawyers always warn their clients to dress well for court. Maybe Mr. Hartshorne ignored his attorney’s advice. What else would account for this whacked decision?

Hartshorne asked the forester to selectively harvest the forest in order to thin out the canopy to allow smaller trees to grow more quickly. He also showed the forester the property lines and asked him to only log trees more than 15-20 feet away from those lines. He did not have his property surveyed before hiring the forester, instead just showing him an old fence line which Hartshorne believed was the property line. Coldsnow became aware of the tree harvesting when Hartshorne’s property was being surveyed, so a portion of it could be sold as another means of paying off his wife’s debt. Coldsnow hired a surveyor, who found that some of the stumps from harvested trees were on Coldsnow’s property. Coldsnow sued, claiming trespass and a violation of §901.51 of the Ohio Revised Code, and Hartshorne claimed adverse possession, a claim that was dismissed before the end of the trial. The jury returned a verdict in favor of Coldsnow in the amount of $11,500 as the cost of restoration or replacement and found Hartshorne had acted recklessly. Accordingly, the trial court granted judgment in the amount of $34,500. Hartshorne appealed.

Held: The jury verdict was upheld. The Court found the jury’s damages award was reasonable. Hartshorne argued that the proper measure of damages was the diminution of the value of the real estate because of the logging. But in a case involving a violation of O.R.C. § 901.51, the Court said, the restoration/replacement cost of the trees is a proper measure of damages when the injured party intended to use the property for residential and/or recreational purposes, according to their personal tastes and wishes. As Coldsnow used his property in this way, the Court held, he did not first need to show a diminution in the value of the land before receiving restoration damages.

The Court also found that the jury’s conclusion that Hartshorne acted recklessly was not against the manifest weight of the evidence, because the evidence showed that Hartshorne had a history of ignoring the boundary line between the properties.

– Tom Root

Case of the Day – Friday, April 17, 2026

Posted on April 17, 2026 by TLRoot tagged.

CRUISIN’

Huey Lewis and Gwinneth Paltrow covered Smokey Robinson’s 1979 hit, Cruisin’, in a duet recorded in 2000. For most of you, that’s ancient history. But people like me, however, remember what we were doing when Smokey’s version first made the charts. Seems that ’79 was a pretty good year…

But we’re not cruisin’ down Memory Lane here. Instead, the cruisin’ we’re talking about today is all about trees. You’re surprised? You shouldn’t be – that’s what we do.

An interesting decision from the United States District Court for the Southern District of Illinois contains a trove of judicial findings of fact and application of law in a timber trespass case, including an explanation of timber cruising. The Court presided over a trial of an overzealous timber harvester, whose timbering activities went beyond the owner’s property and took 231 of Uncle Sam’s trees formerly attached to the Shawnee National Forest.

Now you’d think that 231 trees would be a trifling to a government that can approve multi-trillion One Big Beautiful Bills without reading the fine print, and then spend it all within about three weeks. But nothing’s too petty to escape the eagle eye of the United States Attorney.

The case is interesting not so much because the Court wisely slapped down the tree cutter’s claim that the Government had to show he intended the trespass (read our discussion a few days ago of Stukes v. Bachmeyer on that subject) — but because the Court carefully describes the technique of timber cruising and differentiates between stumpage value and timber value. You should read the full case: the Court finds tree cutter Kosydor liable through a carefully constructed wall of direct and circumstantial evidence, it finds against the Government on unjust enrichment, and it gives a shaky analysis of why the suit against Kosydor was filed within the statute of limitations.

And if you’re of a mind to read more, the U.S. Forest Service has a detailed handbook on tree cruising available for downloading, as well as some pretty slick software.

United States v. Kosydor, 2007 U.S. Dist. LEXIS 61621, 2007 WL 2409557 (S.D.Ill., Aug. 21, 2007). Larry Griffin, a conservation officer for the Illinois Department of Natural Resources, went to Terry Foster’s property to investigate a deer hunting complaint. He noticed timber cut from what appeared to be the Shawnee National Forest. At the time, the boundary line between Foster’s property and the Shawnee was not marked, and no survey had ever been conducted to establish it.

After Griffin reported matters to the U.S. Forest Service, the agency conducted a survey to establish the actual boundary line between Foster’s property and the Shawnee. Once the boundary was marked, the Forest Service initiated a timber cruise.

Timber cruising includes identifying tree species, taking stump diameter measurements, taking measurements from the stump to the top of the tree left on the ground, taking measurements of any logs left on the ground, and recording measurements on a tally sheet. A total of 231 tree stumps were counted on the Shawnee property in the area adjacent to Foster’s property. Information regarding each stump was recorded, including its species, its diameter, and the distance from the stump to the corresponding treetop left in the woods.

Kosydor owned and operated a timber logging business. He contracted with Foster to harvest timber from Foster’s land. His agreement provided for a 50/50 split of proceeds generally, with a 70/30 split on walnut veneer in favor of Foster. Although Kosydor, who was aware that Foster’s property bordered the Shawnee, denied cutting any trees in the National Forest, one of his employees testified emphatically that he had cut trees from the Shawnee National Forest under Kosydor’s direction.

As for the owner, Mr. Foster was unaware of anyone else other than Kosydor doing logging off of those areas during the period of time that he has lived there. The only reasonably available route for accessing and removing the wrongfully cut timber passes over Foster’s property and within very close proximity to his residence.

Held: Kosydor was liable to the government under the Illinois Wrongful Tree Cutting Act. The Court found that Kosydor had voluntarily assumed responsibility for determining the boundary line between Foster’s property and the Shawnee, despite a provision in their contract that Foster would be responsible for doing so, and that he was responsible for the entire logging operation. The Court noted that to prevail on the WTCA claim, the government had to prove that Kosydor intentionally cut or knowingly caused to be cut trees belonging to the United States, which he did not have the full legal right to cut.

Kosydor argued that the government had to prove he intended to trespass on National Forest land, but the Court disagreed. All the United States had to do, it held, was to prove he intended to cut the trees that happened to belong to the Government. Kosydor’s allegedly innocent mistake as to the location of the boundary line, the Court said, was not a defense to the WTCA claim. The Court observed that it is rational that the burden of establishing boundaries be placed on a defendant who orders wood to be cut. Otherwise, it would be advantageous for a defendant to cut now and worry about tree boundary lines later, since the maximum financial burden he would face would be the stumpage value of the severed trees.

One purpose of the WTCA is to discourage timber cutters from cutting trees without thoroughly checking out the boundary lines. The Act is meant to discourage not only the malevolent timbermen but also errant timbermen.

Under the WTCA, stumpage value is used to determine the timber’s underlying value. Stumpage value and timber value estimates, the Court said, both depend upon timber volume estimates, which in turn are based upon the raw data collected in the field by timber cruisers. Put another way, estimating the value of timber taken in a trespass involves a three-step process. First, a timber cruise is conducted, and measurements are taken in the field. Second, the collected measurements are then converted into volume estimates using established mathematical formulas. Third, those volume estimates are then converted into value estimates.

The distinction between timber value and stumpage value only comes into play during the third step of the process. Stumpage value is the value of standing trees or what one might pay for the right to cut and remove trees. Timber value is the value paid by mills for cut logs. In this case, the Court held, the stumpage value was about $12,500, reduced from the Government’s estimate by 10% to give Kosydor the “benefit of the doubt.” Because the trebling of stumpage value is mandatory under the Illinois WTCA, the total loss was about $37,500.

The Government had already reached a separate peace with Foster, who paid $18,000 to make his problem go away. This was deducted from the judgment, and Kosydor was ordered to pay about $19,500.00.

– Tom Root

Case of the Day – Thursday, April 16, 2026

Posted on April 16, 2026 by TLRoot tagged.

YOU’LL GET NOTHING AND LIKE IT

We’ve all had it happen to us. Our next-door neighbor gets drunk and rams his bulldozer into our best shade tree, gouging it up pretty badly. Then we have to sue, and while the torn-up grass he left behind and shrubs he rolled over get paid for, we get nothing for the tree. All because he wounded it but didn’t kill it.

What? You say it hasn’t happened to you? OK, but it did happen to Mike and Melissa in Huron County, Ohio. When neighbor Bob Tite got a little tight and rammed their tree, the trial court told them they’d get nothing for the wounded walnut, because it’s not dead. Dead trees we can figure the cost of, but a wounded tree… Well, it may die sooner instead of later, but who can say? The trial court said the damage is “speculative.”

Speculative? If Mike or Melissa had been rammed by the tight Mr. Tite, they would have been able to collect for their injuries without having to die first. And trees are people, too, right? Well, maybe not, but a tree probably shouldn’t have to die before a property owner can get compensation for damage to it.

Tinney v. Tite, 2012-Ohio-2347 (Ct.App. Huron Co. 2012). One summer day, Mike and Melissa Tinney heard a loud noise outside of their house. When they looked out through the window, they saw their across-the-road neighbor, Bob Tite – quite inebriated at the time – sitting on his bulldozer lodged hard up against a sizeable black walnut tree in their back yard. Deep ruts across their lawn and two smaller trees splintered on the ground marked the path the bulldozer had taken.

The Tinneys sued Bob for the damage. Their certified arborist expert said the damage to the walnut covered 25 to 30 percent of the tree’s circumference. He testified that the extent of the damage “ruined” the tree because, although it would not kill the tree immediately, it would result in “a slow decaying process” that would eventually compromise the structural integrity of the tree and cause it to become a hazard. The arborist was unsurprised that the tree was still producing leaves one year after the incident. He said the wound was starting to develop a callus as healing progressed, but the tree would weaken over time because the wound would not heal completely before decay set in. He could not say that the tree would die from the wound, but he said that the tree’s structural integrity is likely to become a dangerous factor in the future.

The Tinneys also called a witness who had a degree in landscape horticulture. He said the severity of the damage would probably stress the tree out and eventually the old walnut would die. He testified that as the years progressed, the Tinneys could expect more decay and more branches showing signs of decline. He said the tree’s decline and potential death was “not an immediate thing. It’s going to take some time” because “it’s a long process for this tree to decline.”

Bob’s sister testified in support of her brother, however, testifying that she saw the damaged black walnut the summer after the incident, and it looked “healthy, green, and alive” despite the wound on the trunk.

The Tinneys won a judgment of $3,410.00. The award covered the lawn and the saplings but included nothing for the wounded but still living walnut tree because the trial court found that giving them damages for the walnut tree’s injury would be “potentially temporary and speculative at best” since “its appearance remains the same.”

The Tinneys appealed.

Held: The Tinneys were entitled to damages for the injured walnut tree.

The Court observed that most decisions involving O.R.C. § 901.51 – the Buckeye State’s statute on wrongful cutting of trees – involve situations in which trees have been completely cut down, making it considerably easier to determine the full extent of the damage. In this case, the tree was still alive, though it was not guaranteed to remain so for decades to come. Nevertheless, the Court said, temporary damages to vegetation are recoverable, because it is a “fundamental rule of the law of damages is that the injured party shall be fully compensated.”

As a general rule, speculative damages are not recoverable. An award of damages must be shown with a reasonable degree of certainty and in some manner other than mere speculation, conjecture, or surmise. However, the Court ruled, if an appellant “establishes a right to damages, that right will not be denied because the damages cannot be calculated with mathematical certainty.” Even when permanent damages are awarded for trees that were cut down, temporary damages may still be awarded if the permanent damages alone do not fully compensate the plaintiff.

Both of the Tinneys’ experts testified it was reasonably certain that the tree was permanently damaged because it would not heal before decay set in. The Tinneys furnished precise calculations on the reasonable restoration value of the property. Therefore, the Court ruled, they had shown “with a reasonable degree of certainty what would be required to reasonably restore their property. The damages to the tree must have had some value, but the plaintiffs were awarded nothing, even if just a nominal amount for the temporary trespass onto their property.”

The Court of Appeals sent the case back to the trial court to calculate damages for the wounded walnut tree.

– Tom Root