Case of the Day – Friday, May 29, 2026

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ARTIFICIAL DISTINCTIONS

rottentree140408When a tragedy occurs, it’s all too common to look for someone to pay for it. In today’s case, a young man was left a quadriplegic when a healthy-looking tree standing alongside a public highway fell without warning and struck his car. The trial judge was obviously moved by the sad story and felt it was his duty to open the state’s wallet.

The trial judge denied the Louisiana Department of Transportation and Development a free pass. The judge recognized that a prior holding relieved the state from the duty to inspect all sides of a tree. But he reasoned that the rule had been adopted in a case where a construction crew’s negligence had weakened the tree on the side away from the road. The trial court here reasoned that this case was different: it was natural rot, and natural rot did require DOTD to inspect all sides of a tree.

Truly a distinction without a difference! Step back and consider the implications of this holding. Besides the fact that why the tree was weakened is really not relevant to the danger it poses, the trial court’s ruling would mandate incredibly costly and time-consuming inspections. A state — even Louisiana — has a lot of highways to inspect. In Louisiana’s case, it amounts to nearly 17,000 miles of road, and lots of trees. The costs to the taxpayers of a tree-by-tree inspection would be staggering.

A perfect illustration of a distinction without a difference.

A perfect illustration of a distinction without a difference …

The Court of Appeals made short work of the trial judge’s higher “duty.” It held that the law was clear. Where the tree appears healthy — like the one that fell on the victim — the state’s duty could be discharged in a drive-by inspection… no matter why the tree was rotten.

Walker v. State Dept. of Transp. and Development, 976 So.2d 806 (La.App. 2 Cir., 2008). Nathaniel Walker was a passenger in a vehicle being driven by Dannie Evans on Louisiana Highway 71, when a large oak tree fell on the car. Nathaniel was left a quadriplegic, albeit one with a good lawyer. He sued Dannie, Allstate Insurance and the State of Louisiana Department of Transportation and Development.

Among other things, Walker alleged that the oak tree that fell on the vehicle was on the highway right-of-way in violation of highway safety regulations, that DOTD had prior knowledge that the tree needed to be removed, and that DOTD failed to inspect the right-of-way. DOTD moved for summary judgment, arguing that Nathaniel couldn’t show any facts in support of his allegation that DOTD had prior knowledge that the tree needed to be removed. DOTD supported this claim with an affidavit from one of its maintenance superintendents who had inspected the area in question two weeks before the mishap. The state agency argued that, under the law, it owed no duty to motorists traveling on state highways to check for damage on all sides of trees abutting state roadways. The trial court denied summary judgment to DOTD because the damage to the tree was a result of natural rot as opposed to third-party-operated construction equipment. The trial court stated that despite the holding in a prior case – Caskey v. Merrick Const. Co. – the distinction as to how the tree was injured imposed a greater duty to inspect on DOTD.

DOTD appealed.

Held: DOTD won, and Walker’s case was dismissed. The appellate court said in order to recover damages from DOTD, Walker had to prove that the state had ownership or control of the tree that caused the damage; the tree was defective (that is, it created an unreasonable risk of harm); the state had actual or constructive knowledge of the defect and failed to take remedial procedures within a reasonable amount of time, and the state’s failings led to the injuries Walker suffered.

Now this is a distinction without a difference ...

… as is this.

No one contested that DOTD had control over the rotten oak tree, that the rotten oak tree was defective, and that the rotten oak tree caused Walker’s injuries. Instead, the Court held that the primary issue was whether DOTD had actual or constructive knowledge that the tree was rotten. The condition that caused the oak tree in question to fall was visible only on the backside of the tree, out of sight of DOTD inspectors who passed by on the road. There was no genuine issue as to the location of the rotten area in question or whether the rotten area in question was observable from the roadway. Additionally, the photographs taken at the accident scene revealed that the oak tree was otherwise healthy, containing a full canopy of green leaves.

The Court said that DOTD’s duty to protect against the risk of a tree falling onto a highway required it to inspect for dead trees and remove them within a reasonable time. The state was not required, however, to inspect every tree that conceivably could fall on the road or to remove trees simply because they had the potential to fall onto the road.

In Caskey, the court held that DOTD inspectors had no duty to walk around all sides of the tree and check for damage, particularly when the tree was otherwise green and healthy. The trial court in this case imposed a greater duty on the state than the law required. The Court of Appeals ruled that the trial court’s incorrect determination – that a different duty exists when the defect results from natural causes as opposed to artificial causes – was a contradiction of the law, a distinction without a legal difference.

– Tom Root

TNLBGray

And Now The News …

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Detroit, Michigan, WWJ-TV, May 22, 2026: Michigan adds Callery pear tree, 5 other plants to restricted or prohibited lists

Two invasive plants will be added in June to Michigan’s list of prohibited species, with four others added to the restricted species list starting in 2028, state officials said. One of the soon-to-be restricted plants is a flowering tree that has been commonly planted in urban areas – the Callery pear. The Michigan Commission of Agriculture and Rural Development issued the order after its Wednesday meeting.An invasive species is not native to a specific area and additionally has been known to cause harm or is likely to harm the existing environment. “Invasive species cause harm when they out-compete native species by reproducing and spreading rapidly in areas where they have no natural predators and change the balance of the ecosystems we rely on,” state officials said. If a species is prohibited, it is not widely seen in Michigan, and effective management or control techniques are considered not available. If a species is restricted, it has already been established, and usually, some measures can be used to control it. Official state orders routinely update the list…

Syracuse, New York, SUNY College of Environmental Science and Forestry, May 28, 2026: Urban ‘Heat Islands’ Would Be Twice As Hot Without City Trees, Major Study Finds

The world’s ‘urban heat islands’ (UHIs) would be twice as hot without the cooling effect trees have on superheated cityscapes, according to an unprecedented study that also highlights stark inequalities in access to this powerful form of nature-based air conditioning. Led by The Nature Conservancy (TNC) and published in Nature Communications, the paper pools data from nearly 9,000 large cities worldwide – collectively home to approximately 3.6 billion people – to find that tree cover currently mitigates nearly half (~48.6%) of the UHI effect that occurs when man-made surfaces such as roads, buildings and car parks absorb and release heat from the sun, causing urban areas to heat up more than surrounding rural regions. Over 200 million city-dwellers globally, the study finds, have trees to thank for ambient air temperatures more than 0.5°C lower than would otherwise be the case in their neighborhoods – a highly significant contrast when extrapolated across the thousands of cities, billions of citizens and increasingly life-threatening temperatures concerned. ESF researchers contributed to the study’s analysis of how trees reduce heat at the neighborhood scale. Dr. Theodore Endreny, study co-author from the SUNY College of Environmental Science and Forestry (ESF) said, “Strategic tree planting and management where people live can dramatically reduce the intensity, duration, and frequency of extreme heat. Trees in cities across New York State are working hard as natural air conditioners, but they need care to deliver their full cooling benefits…”

Cincinnati, Ohio, WCPO-TV, May 27, 2026: ‘You can’t replace 300 years’ | Push grows to preserve Miami University’s historic trees amid arena project

As Miami University advances plans for a new multipurpose arena, a growing coalition of faculty, students and community members is raising alarms over what could be lost alongside the project: a grove of historic trees that advocates say includes one of the oldest Osage orange trees in the country. For Joel Armor, an assistant teaching professor in the Institute for Innovation in Arts + Design at Miami University’s College of Creative Arts, the debate is about more than landscaping. It is about preserving what he describes as a living ecosystem, a source of artistic inspiration and a piece of campus history that cannot be recreated. Armor said he first learned during the past academic semester that the university was reevaluating green space near the future arena site, which will be on the current Cook Field grounds. Later, he heard discussions about the possibility of constructing a parking lot in the same area — a plan that, should it come to fruition, would fundamentally alter the landscape. “When you see this space in its glory and see these magnificent trees, it’s disappointing,” Armor said. “From an ecological standpoint, these trees are extremely important…”

Jacksonville, Florida, WTLV, May 25, 2026: Orange City Council to vote on tree service permit ordinance

The Orange City Council will hold its second and final vote Tuesday on an ordinance that would require tree cutting and trimming companies operating for hire within city limits to obtain a permit before beginning work. The council meets at 5:30 p.m. Tuesday. The ordinance received its first reading and initial approval May 12. Under the proposed rules, a separate permit would be required for each address where work is performed. Kelvin Knauf, the city’s director of Planning and Community Development, outlined the key provisions during the May 12 meeting. “The proposed ordinance would require a permit for all tree services for hire operating within the city,” Knauf said. Knauf added that each permit would be valid for 14 days from the date it is issued, and all work must be completed within that window. If the work is not finished in time, a new permit must be obtained. The permit must be kept on site and presented upon request to a police officer or code enforcement officer…

Toronto, Ontario, CBC, May 27, 2026: This tree is stinking up some Toronto neighbourhoods, and residents want them cut down

An increasingly common non-native tree in Toronto may have overstayed its welcome. For over 20 years Alan Page and his wife have lived in their Leslieville home, near Jones Avenue and Gerrard Street E., and their backyard ginkgo has always been part of the property’s landscape. But the tree has recently started bearing fruit every autumn, which is sticky and smelly, and is often tracked into the house, Page told CBC Toronto. “You can’t get the residue off, it’s like glue,” he said, “and it attracts flying insects as well, like bees and wasps, which is a concern.” The female ginkgo tree’s fruit produces such a foul odor — described by arborists, city councillors and homeowners who spoke with CBC Toronto as a cross between dog poop and vomit — that residents have been asking their councillors for permission to cut them down, even though the trees are otherwise healthy. Page applied for permission to have the tree removed earlier this year, but city forestry staff refused his application…

Augusta, Georgia, WRDW-TV, May 27, 2026: Tree experts urge preparedness after recent heavy storms in CSRA

With storms already running through the state, it’s the time of year when homeowners need to start making calls to tree cutters. Storms came through the whole CSRA a few days ago. Even heavy rain can weaken roots and make trees unsafe. In Marietta, the owner of a tree cutting company says he’s done 13 emergency calls this week after the storms. He says now is the time to get your home ready for storms if you haven’t already. “A tree that leans toward your house obviously is always of concern. If it’s within striking distance, doesn’t necessarily mean there’s something wrong with it. It’s just pretty obvious where it’s going to fall,” said David Hall, owner of Top Tier Trees. Tree experts warn that you should check the health of trees around your home. They say if there are any signs of decay, it’s best to call a tree cutting company to cut them down…

Cleveland, Ohio, WJW-TV, May 27, 2026: FirstEnergy explains why you may see saws hanging from helicopters along the Ohio Turnpike

Saws hanging from…helicopters? It looks like something straight out of a horror movie. But FirstEnergy is assuring residents that the appropriately named “aerial saw” is no cause for alarm. The North Royalton Police Department took to Facebook Tuesday, May 26, to publicize that work with the aerial saw will be done along the Ohio Turnpike within the next few weeks. You may have seen it before, but if you haven’t, here’s what you should know about the piece of eye-catching equipment hovering high above. According to FirstEnergy, the 24-blade rotary saw suspended from a helicopter is meant to help clear foliage around transmission lines and electrical equipment, thereby preventing or minimizing the impact of tree-related power outages, especially during severe weather events. And we see plenty of those in Northeast Ohio. “Clearing incompatible vegetation under power lines also gives company personnel easier access to inspect and maintain lines and make repairs quicker if an outage occurs,” a FirstEnergy spokesperson told Fox 8 News…

T&D World, May 22, 2026: Wildfire Risk Is Expanding — And Utilities Know It

As it is time to turn T&D World’s attention — and my own — to wildfires again for our yearly supplement on mitigation, I thought for a moment that this had perhaps been a quieter year for wildfires. Here on the West Coast, we got some relief in our superdrought conditions as precipitation levels seemed to stabilize and snowcaps returned to our mountains. Unlike in years past when severe wildfires struck places like Los Angeles, California and Hawai’i’s island of Maui, fewer headline-making blazes sprang to my mind. A quick search of the news proved I was wrong. There are currently wildfires ravaging Nebraska’s cattle country during a time of year where pastures should be greening. In South Carolina, a controlled burn became uncontrolled and the fires are shrouding the area in thick, smothering smoke. In California’s Siskiyou County, another fire is blazing on federally managed land. However, this one, according to the Sacramento Bee, is a prescribed fire, or one set purposefully to limit the amount of debris and fuel that accumulate on the ground. Letting areas periodically burn under controlled conditions can lessen the severity of future fires, or potentially steer them away from populated or sensitive areas…

New York City, The New York Times, May 25, 2026: As a Sacred Tree Dies, Their Village Loses a Piece of Itself

The first sign that the tree was in trouble was the scent — a musty odor that cut through the warm forest air. “It smelled like mushrooms but worse, like decomposition,” said Cyrille Cornu, a French researcher who visited the tree, an ancient baobab that locals call Tsitakakantsa, last October in southwest Madagascar. Approaching the massive trunk in the island nation’s Andombiry Forest, Mr. Cornu’s heart sank. A dark, foul-smelling liquid was seeping from the base of the tree. “I was surprised because I never saw this before,” said Mr. Cornu, who specializes in baobabs and has visited the tree several times over the last 15 years. He thought to himself: “Something is wrong.” Tsitakakantsa, one of the largest and oldest baobab trees in Madagascar, is dying, according to experts and local stewards. Having survived centuries, it appears to have entered a final phase in which it will buckle, collapse and eventually disintegrate. It could take months, maybe longer. Eventually, only a patch of stained earth — like a shadow in the soil — will remain…

Chicago, Illinois, WBBM-TV, May 25, 2026: Man dies after contact with live wire while trimming trees in Lake County, Illinois

A man from Chicago’s far north suburbs died this weekend after an encounter with a live while he was trimming trees. At 4 p.m. Saturday, Lake County Sheriff’s deputies and the Wauconda Fire District were called to Bonner Road and Jackson Avenue in unincorporated Wauconda for a report of downed power lines and an unresponsive person. It turned out that a 67-year-old man from unincorporated Wauconda was up on a ladder trimming trees near overhead power lines when a branch came in contact with the live wire and electrocuted the man, officials said. When first responders came to the scene, the power lines were still arcing in the trees. Power had to be cut off before crews could access the victim, who was still about 15 feet above the ground, officials said…

Montpelier, Vermont, VT Digger, May 25, 2026: Researchers at Vermont orchard work to bring back the American elm tree in New England

Elm trees in New England were nearly wiped out by disease more than 50 years ago, but a small number of the majestic trees survived. Now researchers are asking why and hoping the answer could help restore the trees to the landscape and even limit flood damage in the process. It all started nearly a decade ago when workers with the U.S. Forest Service and The Nature Conservancy planted around 5,300 elm trees in a 28-acre orchard in hopes of restoring the once-abundant tree to New England’s landscape. Elm trees suffered a mass die-off in the 1970s, said Gus Goodwin, a conservation planner with The Nature Conservancy in Vermont. The tree is tied to the region’s history and is integral for future flood resilience, he said. Researchers identified 53 “survivor” elm trees in New England, Goodwin said. These are trees that survived around outbreaks of Dutch elm disease, said Chris Hansen, a research technician with the University of Vermont. This experiment will test if the trees are truly resistant…

Los Angeles, California, KTLA-TV, May 24, 2026: 1,500-year-old giant sequoia killed in California fire headed to the Smithsonian

A section of a 1,500-year-old giant sequoia tree that died in the SQF Complex Fire, which burned roughly 175,000 acres of California’s Mountain Home Demonstration State Forest in 2020, is headed to the Smithsonian, Cal Fire announced on May 24, 2026. The tree was felled for public safety and will now be on display in California and Washington, D.C. for the public to enjoy. “The preserved trunk section carries centuries of visible fire scars, making it a remarkable record of California fire history,” Cal Fire said. The tree has been cut into two sections. One section will be on display at the new California Natural Resources Agency building in Sacramento. The other slab is headed for the Smithsonian Museum in Washington…

San Francisco, California, sfGate, May 21, 2026: ‘Largely intact’: Exceedingly rare trees appear to have survived Santa Rosa Island Fire

Santa Rosa Island’s grove of rare Torrey pines appears to have been mostly spared from the massive wildfire tearing through the second-largest island in Channel Islands National Park, according to initial assessments on Wednesday. The Torrey pine is “the rarest native pine in the United States and, possibly, the rarest pine in the world,” according to the National Park Service. The tree only grows naturally in two very specific areas: Santa Rosa Island and Torrey Pines State Natural Reserve in San Diego. The fate of one of the tree’s only two habitats has hung in the air this week while the Santa Rosa Island Fire burned through more than one-third of the island, including the Torrey pine habitat a few miles away from the island’s pier. But Torrey pine lovers and Channel Islands aficionados received tentative good news on Wednesday, even as the fate of the rest of the island’s unique ecology remains uncertain. Firefighters conducted initial assessments of the grove on Wednesday, and an uncrewed aircraft module also produced flight imagery of the trees…

Newark, Delaware, WDEL Radio, May 21, 2026: Downed tree in Newark causing issues

A stretch of West Park Place in Newark will be closed for an extended period of time due to a downed tree. The incident was reported Thursday morning, May 21, 2026, shutting the roadway down between South College Avenue and Orchard Road. The tree also pulled down wires which snapped multiple utility poles resulting in a power outage in the area. The damage will result in an extended road closure…

TNLBGray

Case of the Day – Thursday, May 28, 2026

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EXPERIENCE MATTERS

Ask a Cleveland Browns fan (if there are any left, that is):  Experience really does matter. Grabbing the hottest college quarterback (Charlie Frye, Brady Quinn, Colt McCoy, Johnny Manziel, Deshawn Kiser, Shedeur Sanders,) with zero NFL experience has not been Jimmy Haslam’s ticket to the Super Bowl.  And then, we got Baker Mayfield. He lasted longer than most, but he ended up as yet another college QB standout, sent to Cleveland to die.  At least he’s got a second act in Tampa… and a pretty good one at that.

Finally, the very expensive quarterback Deshaun Watson, who may finally be in the backfield for a full season. He’s an experienced fighter… unfortunately, many say, the fighting so far has been with women, not opposing teams. 

To borrow Samuel Johnson’s description of a second marriage, it’s the triumph of hope over experience.

Experience does make a difference. That’s a lesson we can take away from today’s case.

There’s another lesson, too, illustrated by the old criminal law adage that no defendant should ever trust his freedom to 12 people who are too stupid to know how to get out of jury duty. Part of that maxim is based in reality: despite the Constitutional promise of a “jury of your peers,” most trial attorneys know that the jury generally ends up overpopulated with government workers (who get time off with pay for jury duty), such as county workers and schoolteachers, or retirees. Professionals, business owners and managerial types – to name a few – usually finagle their way out of the jury dock.

You're much more likely to get 12 confused jurors than you are to get angry ones ...

You’re much more likely to get 12 confused jurors than you are to get angry ones …

Historically, the facts found by the jury are virtually bulletproof. This is partly because tradition and the Constitution have sanctified the community judging concept represented by juries, and partly because the legal system has to have some method of deciding facts with some finality.

Nevertheless, social scientists tell us that there is wisdom in the crowd. Is the jury is right more than it’s wrong? Perhaps it isn’t. Because the law accords such respect to the secrecy of jury deliberations, we may never know.

Today’s case illustrates how carefully appellate courts parse jury findings. It’s quite common for the trial-court loser to complain on appeal that the jury findings were wrong. As the Maine Supreme Court makes clear to us, it’s quite uncommon for the appellate court to agree.

Back in the spring of 2011, Keith Anthony asked his neighbor, Paul Gagnon, to help him cut down a rotten tree. Both Keith and Paul were accomplished tree professionals. Paul used a chainsaw on the 30-inch trunk while Keith pushed on it with a Bobcat. Suddenly, the tree “exploded.” A falling limb knocked Paul unconscious and seriously injured him. (Despite the fact that Paul subsequently died during the litigation, he did not succumb to injuries from the tree).

Paul sued Keith for negligence, arguing that Keith should have warned him that the tree could explode and that he shouldn’t have been pushing on the tree with the skid-steer. In his answer to Paul’s complaint, Anthony argued that Paul was negligent, too, raising what’s known as the affirmative defense of comparative negligence. The trial court jury found that both Keith and Paul were negligent and that Paul was at least as negligent as Keith in causing his own injuries.

explo151116The appellate courts do everything possible to tip the scales in favor of the jury. Its standard of review – the deference the courts of appeal will give the jury’s decision – is to uphold a jury’s verdict if, when viewed in the light most favorable to the winning party, there is any credible evidence in the record to support the verdict. This means that if five witnesses said Keith drove the Bobcat over Paul’s foot, but one witness said that Paul deliberately stuck his foot under the wheels, the jury’s decision to go with the one witness and reject the observations of the other five will be upheld. Appellate litigation can be like watching those hapless Browns get outscored 30-0 by the Ravens for the first 59:30 minutes of the game, only to have Cleveland score a single field goal in the final thirty seconds and win.

Here, the Court decided that no one expected the tree to explode. Shortly after the accident, Paul admitted that he didn’t think Keith was doing anything with the skid-steer that contributed to the tree breaking or falling too soon. Keith corroborated the accidental nature of the event, testifying that the tree “just dropped suddenly without warning or anything.”

The Court went out of its way to note that both Paul and Keith “had substantial experience cutting trees and working in the woods, and both were aware of the rotted condition of the tree they were working on.” A Maine arborist testified that using the Bobcat to try to bulldoze the tree over while someone else sawed at it was, charitably put, a stupid idea. Under the circumstances, the Court said, both Paul and Keith should have known better than to try to use a skid-steer to push the tree over.

As for the jury, the Court reasoned that from the evidence, a jury could have concluded that Keith was negligent in operating the Bobcat; (2) either Keith or Paul or both were negligent because they should have known that the way they were cutting down the tree was dangerous; or (3) no one was negligent, and the tree “explosion” was just one of those things. Because the jury could have gone any of several ways on the verdict, its conclusion that both of the guys were knuckleheads was supported by the record.

In other words, there was enough evidence in the record for everyone. When that’s the case, the jury’s decision as to which version to credit stands.

And if you’re experienced enough to know better, a jury is going to hold you to your experience.

A Bobcat of the type that Keith misused ...

A Bobcat of the type that Keith misused …

Estate of Gagnon v. Anthony, 126 A.3d 1142 (Supreme Court of Maine, 2015). Keith Anthony asked his neighbor, Paul Gagnon, to help cut down a rotted tree at Anthony’s place. Both men were experienced woodcutters. The tree to be felled was about thirty inches wide with a large limb growing out of it. Gagnon used a chainsaw to make a wedge cut in the tree below the limb while Anthony used the bucket of his Bobcat skid-steer loader to push the limb away from the house and a nearby sapling. As they performed their respective tasks, the tree “exploded” and the limb fell on Gagnon, injuring him. Gagnon sued Anthony, alleging that Anthony failed to warn him about the possibility that the limb could snap because of the rotted condition of the tree, and also alleging that Anthony was negligent in his operation of the Bobcat. Anthony raised an affirmative defense of comparative negligence under 14 M.R.S. § 156 (2014).

A trial jury found that both Anthony and Gagnon were negligent and that Gagnon was at least as negligent as Anthony in causing his own injuries. The Estate’s motion for a new trial was denied, and this appeal followed.

Held: The jury’s verdict was upheld. The Court said it would uphold a jury verdict if, when viewed in the light most favorable to the prevailing party, there is any credible evidence in the record to support the verdict. Gagnon, as the movant, was required to show that the jury verdict was so manifestly or clearly wrong that it is apparent that the conclusion of the jury was the result of prejudice, bias, passion, or a mistake of law or fact.

jury151116The Maine Supreme Court said it was clear from the record that neither man expected the tree to “explode” as it had. In a recorded statement that was admitted in evidence, Gagnon explained that the tree “broke way too soon, it should have never broke at that point.” In his statement, Gagnon placed no blame on Anthony, stating that he did not believe that Anthony was doing anything with the skid-steer that contributed to the tree breaking or falling too soon. Anthony corroborated the accidental nature of the event, testifying that the tree “just dropped suddenly without warning or anything.” Furthermore, the evidence showed that both Gagnon and Anthony had substantial experience cutting trees and working in the woods, and both were aware of the rotted condition of the tree they were working on. The Court dryly observed that “it would not be unreasonable to infer from this circumstance that both men knew, or should have known, the risks associated with cutting the rotted tree, and both should have known that the plan to use the Bobcat to fell that tree was ill-advised.”

The Court said that the evidence was sufficient for the jury to decide any of three ways. The jury could have found that (1) Anthony was negligent in his operation of the Bobcat; (2) either Anthony or Gagnon or both were negligent because the dangerousness of the method they undertook to fell the rotted tree should have been obvious to each; or (3) neither of them was negligent, and the limb falling onto Gagnon was simply an unexpected accident. Where the causal fault of both parties is in dispute, the Court said, “it is the sole prerogative of the jury to determine the comparative degrees of fault of each of the parties to a negligence action.”

Although the record did contain evidence that Anthony accepted some responsibility for Gagnon’s injuries, and although a licensed Maine arborist testified that pushing a tree with a skid-steer is “not the proper way to do it,” the Court ruled that there was sufficient credible evidence in the record to support the jury’s finding that Gagnon was at least as negligent as Anthony.

Thus, the trial court didn’t abuse its discretion in denying Gagnon’s motion for a new trial.

  – Tom Root

TNLBGray

Case of the Day – Wednesday, May 27, 2026

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TOO CUTE BY HALF

Years ago, I often crossed swords with a crusty old lawyer who favored flannel shirts and corduroys, as well as awful-smelling stogies that fogged up a deposition room like a sunny day in Beijing. When I would explore the status of any pending litigation with him, he always complained that my client needed to “get the money flowing,” by which he meant “start the settlement talks.”

A lot of personal injury lawyers live and die by that mantra, sometimes litigating a dog of a case because they are confident that before they have to face a summary judgment motion or, God forbid, an actual trial, the defendant will open a checkbook and pay their clients to go away.

That’s what happened in today’s case. To be sure, the deaths of two young men when a tree fell on their car were a tragedy. But somewhere along the way, the families of the decedents lost their way and decided – when an expert told them frankly that they had no case – that they could fake it, shucking and jiving until the defendant’s insurance company paid up.

Sadly for the plaintiffs in today’s case, the defendant – a nonagenarian – passed away before trial, leaving a tough-minded executor who wasn’t going to play footsie with some oily out-of-town lawyers. Also passing away before the trial was the defendant’s insurance carrier: the company went bankrupt, so the liability coverage that might have otherwise paid a settlement went away, too. The plaintiffs, perhaps because the estate had money, perhaps because – like fighters in a 15th-round clinch – they were too exhausted to do anything else, played fast and loose with the discovery rules, not answering interrogatories, delaying trial in hopes of a settlement, even hiding the first expert’s report.  But as sometimes happens (though not often enough), the truth was found out.

The result was a vindication for a blameless old lady (who, although dead, nevertheless faced post-mortem indignity at the plaintiffs’ hands) and a well-deserved spanking for some lawyers who were about too cute by half.

Wade v. Howard, 232 Ga.App. 55 (Ga.App. 1998). Chris Wade and Ed Barnsley were driving along Briarcliff Road in unincorporated DeKalb County immediately after a thunderstorm. As they passed Grace Nesbitt’s 8-acre tract of property, they were killed when their car was struck by a large tree that fell across the road. At the time, Grace was 90 years old and quite ill. Thus, she had not lived on her property for three years before the accident. No matter. The families of the deceased young men nevertheless sued Grace for wrongful death.

During the 1980s, Grace had trees removed from her property on occasion. In October 1987, she hired a man to remove two trees that were dying because they had been struck by lightning. At the same time, she asked a friend who was caring for her and seeing to her affairs to inspect her property for any other dead or diseased trees. He did so and found no other trees that needed cutting. This caretaker also testified that he looked at the trees along the roadway “many times” on subsequent occasions while walking Grace’s property at her request.

As for the tree that fell, he saw nothing unusual about it. The base of the tree was over 20 feet from the roadway, behind a fence and across a gully in a heavily overgrown area. Before it fell, the tree’s base was covered with heavy overgrowth and vines. The tree grew towards the sun over the roadway like other trees along the road. The caretaker observed the fallen tree while it was being cut up and saw no dead limbs on it; it was “just healthy on the outside, and this is what baffled everybody, you know.” He said that nothing visible on the tree indicated it was dangerous.

No one ever notified Grace or the caretaker of any problem with the particular tree.

The plaintiffs initially hired an expert who inspected the stump of the fallen tree within six months of the accident. He said the tree was severely decayed and hollow at the base, but that “this internal defect would not have been readily apparent [to] an untrained casual observer.” While the tree leaned over the road, predisposing it to fall in that direction, the expert explained it leaned and had more branches on one side because it was an “edge tree” seeking sunlight over the roadway, doing what all edge trees do. He stated that all edge trees behave like this.

The plaintiffs didn’t much like his opinion and fired him along with the lawyer who had hired him. Three years later, they hired a second expert, who filed an opinion based on reviewing photos of the accident scene. He never authenticated the photos in his report; therefore, the trial court rejected his opinion. The Plaintiffs also obtained an affidavit from a neighbor who testified she believed the tree was dangerous because it leaned over Briarcliff Road. She admitted she had shared her opinion with Grace or the caretaker.

Grace died before trial, and her estate was substituted as a defendant. The trial court granted summary judgment in favor of Grace’s estate. The plaintiffs appealed.

Held: Grace was not liable for the fallen tree.

The Court said that Georgia law governing a landowner’s responsibility for trees is well established. The prevailing rule distinguishes between rural landowners and urban landowners (who are held to a standard of reasonable care in inspecting trees to ensure safety). Rural landowners are liable only where one of their trees has “patent visible decay and not the normal, usual latent micro-non-visible accumulative decay.” In other words, rural landowners have no duty to consistently and constantly check all trees for non-visible rot, as the manifestation of decay “must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.”

Just as the owner of a tree has no duty to check it constantly for non-visible rot, a city has no duty to check limbs overhanging a public road for non-visible rot. The Court held that while Grace’s land was unimproved, she did not live on it, and she was old and infirm, it nonetheless would assume for the sake of the case that it was urban land, because it was located in the Atlanta metropolitan area. Even under the urban landowner standard, however, the Court ruled that the plaintiff families had not shown that there was any question of fact that Grace had breached her duty to inspect. The Court said the Plaintiffs

failed to demonstrate patent visible decay in the tree before its fall. Their own expert witness testified that the decay would have been invisible to a layperson on inspection of the tree. Moreover, plaintiffs have not demonstrated that the decay would have been visible, apparent, or patent before the fall of the tree because of its inaccessible location and the heavy undergrowth and vines surrounding the tree’s base.

The Court of Appeals was not very happy with the Plaintiffs. It noted they had fired their expert and first lawyer when they received an opinion that did not match their belief that they should make some money in this case. They “shopped” the case through a number of law firms before they found an attorney from out of town, who then proceeded to hide the first expert’s report from the defense until it was accidentally revealed. The plaintiffs did not respond to discovery requests, filed an expert’s opinion without authenticating photos, and sued everyone – Grace, the County, county employees, and even automobile insurers – in a “shotgun” approach that forced a number of blameless defendants to spend money defending themselves. Plaintiffs filed the day before the statute of limitations expired, and used every procedural trick in the book to delay the day of reckoning.

“Throughout the lengthy course of this action,” the Court complained, “plaintiffs have avoided stating a legal basis for their claims or the supporting facts until faced with an imminent ruling against them. While plaintiffs as laypersons may not have been informed of the controlling law or the substantial delay that occurred as a result of their counsel’s conduct, it is clear that counsel was well aware from the inception of this litigation that these claims have no merit.”

The Court thus socked the plaintiffs’ lawyer with a $1,000 fine.

– Tom Root

TNLBGray

Case of the Day – Tuesday, May 26, 2026

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SIC WHAT?

This is a logo for some financial planner but it would work well for an arborist.  Just so it’s not “Sic utere tuo ut alienum non lædas.”

Today, we consider the final issue raised by our Iowa reader (see last Wednesday), who wrote complaining that her neighbor planned to bulldoze a driveway along a steep grade right next to his land. She feared that the bulldozing would destroy the root systems of her trees—many a century or more old—and so badly destabilize the slope that it would cause landslides that carried away his land.

We identified four questions in our reader’s inquiry. We have addressed the questions about her neighbor’s damage to trees that might be exactly on the boundary line, as well as those on her land with roots crossing the boundary line. Today we address the final question: what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well. Could our reader get an injunction to stop the harm before it starts? It’s a cliffhanger.

No fear, lovers of legal drama, because Iowa (as well as most states) has accepted in one form or another the doctrine of sic utere tuo ut alienum non lædas, meaning “so use your own property as not to injure that of your neighbor.” The doctrine has been held to have limits that fall well short of your basic trespass to real estate — in today’s case, a landowner tried unsuccessfully to stop the property owner above him from sending additional drainage down a creek, eroding his banks. But the Court acknowledged that sic utere tuo ut alienum non lædas did exist and was illustrated in the generally accepted right of lateral support.

Bad things can happen when lateral support is lost.

Bad things can happen when lateral support is lost.

And that right may be what rides to the rescue of our Iowa reader. The right to lateral and subjacent support means that a property owner has the obligation not to remove soil or change grades in such a way as to take away lateral support to the soils of her neighbor. The Court said it isn’t a silver bullet — it applies only to activities along the property boundaries – but that may be enough for our reader.

Bulldozing an already steep grade and removing root systems — which in all likelihood play a substantial role in stabilizing the slope — may well violate the other landowner’s duty to provide lateral and subjacent support.

So what to do? As we saw several days ago, the Iowa courts have taken a rational view of how much harm is irreparable — and showing irreparable harm is essential to winning an injunction — making it entirely possible to get a court order stopping the bulldozing before it starts. Our reader’s local attorney will probably want to engage an expert to examine the situation and provide a detailed, technical affidavit predicting the extent and permanence of the harm that could result from bulldozing the already significant slope.

Our reader mentioned that she was also checking the various administrative agencies to ensure that the permit process was being followed. Often, much potential harm can be avoided by arguing the case before agencies that—with stricter, more detailed requirements—can hobble ill-conceived projects before they take flight.

A word of caution: we’re throwing out ideas left and right, but we’re not anyone’s lawyers here. There is no substitute for local boots on the ground, an attorney from the area versed in land use law. We trust that our reader, perhaps armed with some good ideas, will refer the matter to her local lawyer.

Pohlman v Chicago, Milwaukee & St. Paul Railroad Co., 131 Iowa 89, 107 N.W. 1025, 6 L.R.A.N.S. 146 (Sup. Ct. Iowa 1906). The railroad had a track grade and bridge located near and above Pohlman’s property. Water traditionally drained off the Pohlman place through Poole Hollow, which went through a corner of the property. However, the railroad decided to improve the flow of water around its grade by running a ditch of its own into Poole Hollow. The result was that more water flowed through the Hollow during rainstorms, and at a much faster rate. The fast-moving flow eroded Pohlman’s land, and he sued. In his action, he argued that the railroad company had damaged his real estate and violated the old doctrine of sic utere tuo ut alienum non lædas – which translates as “so use your own property as not to injure that of your neighbor.” The trial court granted a demurrer to the railroad, dismissing the case for failure to state a claim on which relief could be granted.

Pohlman appealed.

Held:  The case was properly dismissed. Superficially, the Court acknowledged that the decision was clear. The lower property was obligated to accept the flow of water discharged by the higher property, meaning that the increased flow through Poole Hollow was not a condition for which a court would grant relief. But, the Court halfway complained, “If this were all, it would seem that the case must be at an end. But counsel for appellant go farther and invoke the maxim sic utere tuo ut alienum non lædas–“so use your own property as not to injure that of your neighbor–and insist that the case, in view of the peculiar circumstances, is brought within the operation thereof.”

The principle is that no property has a greater right than any other and that each owner is obligated to use his or her property in such a way as not to injure the property of his or her neighbor. The Court acknowledged that there existed a right of lateral and subjacent support, and the theory being advanced by Pohlman was that “to all intents and purposes the situation presents a case of the removal by an adjoining proprietor of the lateral support to the soil of his neighbor.”

bulldoze151113The Court acknowledged that the right was a natural one predicated on necessity. “As the term itself implies, it has relation to the support which, in a state of nature, the soil of one owner receives at the boundary line from the soil of his neighbor.” But, warned the Court, the doctrine could not be extended to embrace cases of trespass generally. “It goes no further than to inveigh against an interference within the zone of the natural support afforded by the soil conditions at the boundary line.” This case had nothing to do with boundary-line support. Instead, the essence of the complaint was that by the accelerated flow of the surface water, more soil had been carried away from the general surface of Pohlman’s land than otherwise would have occurred.

The point of the case is that a right of lateral and subjacent support exists, and — as of 1906 — that was about as far as sic utere tuo ut alienum non lædas extended.

TNLBGray

Case of the Day – Friday, May 22, 2026

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GETTING BULLDOZED

bulldoze161229Yesterday, we tackled the first of several interrelated questions raised by an Iowa reader. She wrote that a neighbor planned to bulldoze a driveway along a steep grade right next to her land. She feared that the bulldozing would destroy root systems of her trees — many a century or more old — and so badly destabilize the slope that it would cause landslides that carried away her land.

We identified four questions in our reader’s inquiry. We tackled the first question yesterday about trees that might be exactly on the boundary line, and we concluded that Iowa law would not allow her neighbor to take steps that would destroy them (such as wiping out their root systems) without our reader’s OK.

But that answer begs the question of what will happen to trees that are growing entirely on our questioner’s land but extend their branches or root systems onto the neighbor’s place. (The third question — what if the neighbor’s bulldozing causes the steep slope to collapse, bringing some of our reader’s land down as well — and the final question about whether our reader could get an injunction to stop the harm before it starts, will be addressed next week.)

The short answer to today’s question is found in the century-old case of Harndon v. Stultz. That decision adopted what, years later, would be called the “Massachusetts Rule,” specifically that a landowner has no right to judicial help in stopping an encroaching tree from his or her neighbors, but he or she may trim its branches and roots back to the property line. Under the rule of Harndon, it would appear that the neighbor could bulldoze out the root systems that have grown onto his land without liability.

But we’re not entirely satisfied that this would be the answer. Remember first that the plaintiff in Harndon complained that the trees in question were damaging her land, the roots tying up the ground and the trees shading what otherwise would be cropland. The court didn’t have much sympathy for her, but it did recognize that she was suffering because the tree was just doing what trees do.

The United States has been moving inexorably toward the Hawaii Rule, which provides a landowner with judicial relief where the trees are nuisances, and not merely being trees. Witness the Virginia decision of Fancher v. Fagella, in which the tree was causing substantial damage to the plaintiff’s home. The obverse of this coin is illustrated in the question posed here: what happens when the neighbor is suffering absolutely no damage whatsoever from the trees in question? As our reader explained it, the neighbor merely wants to bulldoze a road on a steep slope along a very narrow piece of property. During the bulldozing, it’s likely that root systems will be severed and that trees will be badly damaged or killed.

Our suggestion that there may be more to it than a century-old case suggests isn’t that far off. A California decision, Booksa v. Patel, has already held that a neighbor must act reasonably in exercising his or her self-help rights, and “reasonable” is defined as taking steps no greater than necessary to ameliorate the harm the neighbor seeks to correct. Professors Prosser and Keeton, in their seminal work The Law of Torts (5th ed. 1984) §57, say that a landowner has a privilege to make use of the land for his own benefit and according to his own desires, which is an integral part of our whole system of private property; but it has been said many times that this privilege is qualified by due regard for the interests of others who may be affected by it. The possessor’s right is therefore bounded by principles of reasonableness, so as to cause no unreasonable risks of harm to others in the vicinity.”

Remember, no one said our neighbor's roots are invasive.

Remember, no one said our neighbor’s roots are invasive.

In the case our reader has raised, it may well be that the time is ripe not to reverse Harndon v. Stultz, but rather to add to the body of law it represents by finding that a neighbor’s right of self-help is circumscribed by reasonableness. Under that standard, where a neighbor kills a tree by removing a root system, where the tree admittedly has caused no sensible harm to him, might be unreasonable.

It’s certainly something our reader’s Iowa attorney might want to consider.

Tomorrow: What if the bulldozing causes landslides on our reader’s property?

Harndon v. Stultz, 124 Iowa 440, 100 N.W. 329 (S.Ct. Iowa, 1904). Harndon and her husband owned and farmed an 80-acre tract of land. Stultz had 160 acres just to the south of the Harndon farm. Many years before, the Harndons planted a willow hedge along the entire south line of the farm, and later, Stultz extended the hedge eastward. The Harndons claimed that Stultz had agreed with them to maintain the west half of the hedge line and the Harnsons would maintain the east half. Some years later, the Harndons dug up the eastern half of the hedge, replacing it with a fence. Mrs. Harndon then demanded that Stultz do the same. Stultz refused, and she sued for an order finding the hedge to be a nuisance and requiring Stultz to cut it down. She argued that the willow had spread through the soil, and so much shade was cast by willows that it rendered a portion of the Harndons’ land unusable. As an alternative, the Harndons asked that, if Stultz had no duty to remove the hedge, they be allowed to do so at their expense. The trial court dismissed the petition, and the Harndons appealed.

Tomorrow - Could our reader's neighbor cause a landslide?

Tuesday – Could our reader’s neighbor cause a landslide?

Held: The Court adopted what was essentially the Massachusetts rule years ahead of its time. Nothing in the law, the Court said, made it a defendant’s duty to cut down a hedge or tree simply because, over a passage of time, the owner’s neighbor found the roots and the shade of the growing trees injured the productiveness of his land. The raising of trees, the Court held, is a legitimate use to which an owner may put his land. If the limbs of such trees overhang the land of a neighbor, he may cut them off at the line, and, if the roots penetrate the neighbor’s soil, he may dig them out, but that is the extent to which he may carry his objection.

The Court said that an adjoining property owner may cut off the overhanging branches of trees at the property line, and dig out the roots penetrating the soil on his land. However, that property owner is not entitled to compel the owner of the tree to cut it down, regardless of whether the care and maintenance were provided by the owner or by the adjoining property owner. On the other hand, the Court said, trees standing on the boundary line between lands of adjoining owners are the common property of both parties, which neither may destroy without the consent of the other. The Court upheld the trial court but modified the decree to let the Harndons remove the hedge at their cost, based on Stultz’s statement during oral argument on appeal that she didn’t object to its removal.

– Tom Root

TNLBGray