Case of the Day – Friday, July 1, 2022


Rarely (as in “I don’t recall when I’ve ever said this before”) do I caution that the prevailing law in any particular state is wrong, and likely to be cruisin’ for a bruisin’ the next time an appellate court has to think about it. But I feel comfortable issuing that warning about today’s case.

From Ohio (home of rock ‘n roll, pro football, the first guy to walk on the moon, the brothers who turned a bicycle into the first airplane, and a ton of other cool things), comes a case that pretty much runs smack into Fancher, Herring, the Hawaii Rule, and a raft of other cases reflecting the modern view that a homeowner whose tree is wreaking havoc on the neighbor’s property may be ordered by a court to fix the damage at his expense.

To be fair, this case may be proof of the old legal aphorism that “hard cases make bad law.” Even the most cursory reading of the facts suggests that Dave Rababy may well have been a horse’s ass, hounding his neighbor because a tree dropped leaves and twigs on his property. Speaking as a guy who owns all of my five southerly neighbors’ leaves every fall – and these things are the size of dinner plates – I understand how it can be irritating to have other peoples’ leave on your lawn. But I would never sue them over it. I don’t think I would…

Dave had no such compunction, and his emesis of woe delivered to the court made him the boy who cried wolf. He howled so loudly about leaves and twigs and that his trimming crew was not allowed to trespass on Roy’s property and hack away at the offending tree, and minutiae of a similar nature, that his real complaint – his driveway was being heaved and foundations dislodged by the roots – got lost in the underbrush. In Fancher, Whitesell and even Iny, such damage was enough to get the neighbor’s tree declared a nuisance. If Dave had exercised a little plaintiff self-control, he might have gotten there, too.

We are too urban and too suburban, and our properties are too developed for the Massachusetts Rule to be the exclusive remedy for genuine harm done by a neighbor’s tree. That is the way the law is trending throughout the civilized world, and it is bound to reach Ohio sooner or later.

Rababy v. Metter, 30 N.E.3d 1018 (Ct.App. Cuyahoga Co., 2015). David Rababy and Roy Metter were next-door neighbors. Dave’s driveway abutted Roy’s property in certain places and nearly abuts in others. A fence separated the properties, and a stand of mature trees ran along the fence on Roy’s side of the boundary line.

Dave sued Roy for negligence, nuisance, trespass, and interference with a business contract. Dave asserted that trees at the edge of Roy’s property extended over his own property, and dropped leaves, needles, sap, and branches onto his car and home, and that some of the trees were rotten. He said the trees cast shadows over his property and cause mold growth on his roof, as well as damaged his driveway and foundation.

Dave complained he had a company to trim the overhanging branches, but Roy’s daughter prevented the unnamed landscape service company from properly performing this work. The complaint alleged the trees constituted an ongoing nuisance and trespass and that Roy negligently maintained the trees. Dave asked for $52,500: $37,000 for future tree trimming services and $15,000 in compensatory damages.

Both parties filed motions for summary judgment. Dave argued that on “an ongoing basis, Roy’s trees encroach onto my property, specifically over my home and driveway. His trees deposit leaves, debris, and sap onto my property, causing damage.” Dave also repeated the claim about Roy’s daughter running off the tree trimmers.

Roy argued that he owed no duty to Dave to trim otherwise healthy trees on his property. He claimed the trees were mature and preexisted either party’s ownership of the property. He said that a year before, Dave hired Cartwright Tree Service to trim the row of pine trees that ran along the driveway. He said no one complained when Cartwright trimmed the overhanging branches from Dave’s property free, but when Cartwright began trimming branches and trees back further than the property line, Roy’s daughter objected. Roy said that he has no objection to Dave trimming the overhanging branches back to the property line.

Dave replied with new allegations that the trees in question were decaying or dead. Attached to the reply was a new affidavit that averred that the trees were decaying and dangerous and that one had fallen on his property. He included a picture of a tree that appears to have fallen across a driveway. However, the affidavit was neither signed nor notarized.

The trial court granted Roy’s motion for summary judgment, and denied Dave’s. Dave appealed.

Gen. Robert E. Lee – a man rapidly being consigned to the ash head of history – knew something about duty … and even he couldn’t have found that Roy owed one to Dave.

Held: Roy owed Dave no duty, so the trial court’s dismissal of the case was upheld.

In order to succeed in a negligence action, the Court said, Dave must demonstrate that Roy owed him a duty, that Roy breached the duty, and that he suffered damages that proximately resulted from Roy’s breach. Here, Dave offered evidence that falling pine needles, leaves, sap, and sticks have damaged his car, driveway, and roof. He also alleges, without evidentiary support, that encroaching tree roots damaged his driveway and home.

While he showed damage, Dave was unable to show that Roy owed him any duty. A landowner is generally not responsible for the losses caused by the natural condition of the land. Instead, the Court observed, states generally allow one impacted by such growth the remedy of self-help. A privilege existed at common law, such that a landowner could cut off, sever, destroy, mutilate, or otherwise eliminate branches of an adjoining landowner’s tree that encroached on his land. But, the Court said, whether a separate remedy exists is an open question.

The Massachusetts Rule provides that in almost all circumstances, the sole remedy for damages resulting from the natural dropping of leaves and other ordinary debris from trees is the common law remedy of self-help. The rule does provide a limited exception for dead trees, just as Ohio has established a duty for urban landowners of reasonable care relative to the tree [hat overhangs a public street, including inspection to make sure that it is safe.” Where constructive or actual knowledge of an unreasonably dangerous condition exists on the land of an urban landowner, such as a dead tree, the duty prong of a negligence claim may be satisfied.

The reasoning set forth in support of the Massachusetts Rule, the Court said, is apt to the facts of this case: “[T]o grant a landowner a cause of action every time tree branches, leaves, vines, shrubs, etc., encroach upon or fall on his property from his neighbor’s property, might well spawn innumerable and vexatious lawsuits.” The Court thus adopted the Massachusetts Rule as the law of this jurisdiction.

But Dave also argued that in Ohio a “landowner in an urban area has a duty to exercise reasonable care to prevent an unreasonable risk of harm to others from decaying, defective or unsound trees of which such landowner has actual or constructive notice.” Dave contended Roy’s trees were in such a defective condition and thus constituted a nuisance. Dave also argued that Roy, an urban landowner, had a duty to inspect his trees and protect others from a dangerous condition created by any unsound trees. Even if such a duty existed, the Court said, it only is breached when the owner has actual or constructive notice of a dangerous condition.

Leaves – often a pain in the arse, but seldom a nuisance

The Court held that Dave put forth no evidence that any of the trees constituted a dangerous condition of which Roy was aware or should have been aware. He presented no any evidence that the trees are dead, decaying, or unsound, and cited no case holding that “the normal yearly life-cycle of a tree and the natural shedding of leaves, twigs, and sap constituted a nuisance. Thus, he provided no compelling justification for a court to hold that Roy’s trees case constituted a nuisance or a dangerous condition. The problems Dave had experienced with the trees “are the natural consequence of living in an area beautified by trees. Dave’s remedy is to trim tree limbs that overhang his property back to the property line, to which Roy averred he has no objection.”

The trees at issue in this case do not constitute a nuisance, and Roy is not negligent in regard to them.

Dave also asserted that the trees on Roy’s property constituted a trespass. But the elements of a successful trespass claim include an unauthorized intentional act, and entry upon land in the possession of another. Here, there is no intentional act. Dave claimed that Roy’s actions of not removing or trimming the trees constitute an intentional act. But, the Court said, as it explained, Dave’s remedy for intrusion by vegetation is to trim it back to the property line.

In sum, Dave’s claims that detritus falling from trees from the neighboring property constituted a trespass, a nuisance, and negligence were simply not actionable. The Court cited a Maryland case that “it is undesirable to categorize living trees, plants, roots, or vines as ‘nuisances’ to be abated. Consequently, we decline to impose liability upon an adjoining landowner for the ‘natural processes and cycles’ of trees, plants, roots, and vines.”

– Tom Root


And Now The News …

Michigan State University, June 28, 2022: Landscape trees begin to show signs of summer stress

The early summer heat and lack of rainfall in lower Michigan is beginning to affect landscape trees in our area. Trees often begin to show drought stress symptoms about the same time that unirrigated lawns begin to brown up. We are beginning to see common indicators that broadleaved trees are beginning to show the effects of heat and drought, such as shedding leaves and leaf rolling or leaf curling. Shoots on conifers may begin to wilt or droop and conifers may begin to shed interior needles as trees undergo moisture stress. Most well-established landscape trees can survive our typical mid-summer dry spells without any lasting effects. However, Michigan State University Extension notes that trees that have been planted in the last two to three years or trees that have experienced other stresses recently, such as root damage during construction, may require some attention during the current round of hot, dry weather. In the absence of rainfall, watering trees once a week is the best way to alleviate water stress. It is important to avoid overwatering and not kill trees with kindness. Also, make sure that irrigation water does not run off and is able to infiltrate into the ground. In clay soils, this may mean moving from tree to tree in a cycle to allow water to fully infiltrate while watering…

BBC, June 30, 2022: New map of ancient trees an opportunity for conservation

A new map shows there could be around two million trees with exceptional environmental and cultural value previously unrecorded in England. That’s ten times as many as currently on official records. This tree-map is sounding a rare note of optimism in the conservation world. But the Woodland Trust charity warns that these trees – known as ancient or veteran specimens – have “almost no” legal protection. It comes after a centuries-old oak tree was felled in Peterborough on Wednesday by the council, who said it was the most likely cause of “structural damage” to nearby homes. The BBC joined the hunt for one of these ancient giants. On the Ashton Court Estate near Bristol, we follow Steve Marsh from the Woodland Trust, fighting our way through brambles and rhododendrons, in the hunt for the legendary Domesday Oak. Instead we discover an ancient unnamed tree – one the Trust has no record of. We take turns sitting inside – the air is cool and still. An ancient tree is considered remarkably old for its age – they are sometimes known as “living archaeology”. They’re incredibly rich in wildlife – one ancient oak has more biodiversity than a thousand 100-year-old oaks…

Pensacola, Florida, News Journal, June 28, 2022: North Hill ‘heritage’ oak case: Pensacola loses second appeal in tree removal lawsuit

Pensacola lost a second appeal case last week attempting to block the removal of a “heritage” oak tree on Spring Street in North Hill. The Florida First District Court of Appeal issued another 2-1 decision Wednesday denying the city’s request for a full hearing before the court and certification of the case as an issue of “great public importance,” which would open a path for the Florida Supreme Court to hear the case. Three years ago, the city sued Larry and Ellen Vickery to block the removal of the protected tree. Following a new state law, the couple had obtained an arborist opinion stating the tree was dangerous and could be removed once the city was notified. The city sought the opinions of other arborists who said the tree was healthy and an Escambia County Circuit Court judge allowed an injunction to go into effect that blocks the removal of the tree until the lawsuit concludes…

Rockland, New York, Rockland/Westchester Journal News, June 29, 2022: State inspects trees along Palisades Interstate Parkway a week after deli owner killed

State road crews this week are scouring a section of the Palisades Interstate Parkway for “hazardous trees,” a week after Anthony Apostolico, owner of the famed Italian Food Center in West Haverstraw, was killed on Father’s Day when a large tree came crashing down on the family’s red Ford F-150. “Safety is always NYSDOT’s top priority and following last week’s tragic incident along the Palisades Interstate Parkway, tree crews have been dispatched to the PIP corridor to further inspect trees in an abundance of caution,” New York State Department of Transportation spokesperson Heather Pillsworth said Monday. The work is concentrated between Exit 15, Gate Hill Road, to Exit 16, Lake Welch Drive, along the northbound PIP. Orange markers and piles of wood could be seen in the left median and along the right side, where lush greenery and looming trees are just feet away. Along a small rock outcropping off the right shoulder of the northbound PIP, just before the left-side exit to Lake Welch, memorial flowers lay. Two of the Apostolico children — a 20-year-old son and 17-year-old daughter — were injured. The family, which resides in Chester, declined to discuss the incident now as they concentrate on their recovery. The scheduling of this work was linked to the crash, but Pillsworth said such maintenance is ongoing…

Los Angeles, California, Times, June 27, 2022: California drought, bark beetles killing the oldest trees on Earth. Can they be saved?

Forest pathologist Martin MacKenzie strode forward on a narrow path through California’s mythic bristlecone pine forest in the White Mountains near the Nevada border, methodically scanning gnarled limbs for the invaders that threaten the lives of some of the world’s oldest trees. These intruders are bark beetles, a menace smaller than a pencil eraser, but they bore by the thousands into the bark and feast on the moist inner core, where trees transport nutrients from roots to crown. Then they carve out egg galleries, where hungry larvae hatch. A blue stain fungus carried in by the pests delivers the coup de grace — a clogged circulatory system. For thousands of years, bark beetles were held in check or eliminated by the harsh conditions of the stony, storm-battered mountain crests where the grotesque, twisted trees have evolved an arsenal of survival strategies…

ABC News, June 29, 2022: Has this scientist found the world’s oldest tree? Experts aren’t so sure

A scientist in southern Chile believes he’s found the world’s oldest tree, a Patagonian cypress he says is over 5,000 years old — but not everyone is ready to hand the record over yet. Jonathan Barichivich, a scientist who has studied the tree, named the Alerce Milenario, for two years, told the journal Science that his research proves the 100-foot tall, 13-foot wide tree is the world’s oldest. His research, which is not yet published, challenges the current record — held by a bristlecone pine in the White Mountains of central California, known as Methuselah. That tree is 4,850 years old, according to Guinness World Records. However, Guinness World Records is not ready to hand the title over quite yet. Adam Millward, managing editor at Guinness World Records, told ABC News that he has spoken with the organization’s dendrochronology expert about the new findings, and the Patagonian cypress has already been deemed the world’s second-oldest species, so there is “no denying its longevity potential…”

Fast Company, June 29, 2022: 36 countries now have more trees than they did in the year 2000

Since the beginning of the millennium, the world has lost forests cumulatively covering more than 100 million hectares, an area about two and a half times larger than California. But there is some good news—and lessons for the future: those losses haven’t happened everywhere. Thirty-six countries actually had more trees by the year 2020 than they did in 2000. Countries—including Bangladesh, China, Denmark, Ireland, and Uruguay, and Bangladesh—had a net gain in tree cover, according to new data from researchers at the University of Maryland and the nonprofit World Resources Institute. Others, including the U.S., had a net loss. “The new data is pivotal, because now we have the full picture of a forest change,” says Katie Reytar, a researcher in the forests program at WRI. “For a long time, we had been looking just at loss in isolation, and doing the best we can with looking at gain in isolation. But it’s really the balance of the two that is that is important and understanding the full was full spectrum of what is happening, because you could easily restore a significant part of your country, but if you’re deforesting all of your primary forests in another region, you can’t really look at those independently…”

Philadelphia, Pennsylvania, WHYY Radio, June 29, 2022: What property owners, developers need to know about Philly’s new tree rules

Philadelphians pushing for a greener, cooler city are cheering a bill that made it through City Council last week that could charge developers hundreds of dollars per inch of tree they remove and don’t replace. “I think that it is a really good start,” said Gabriella Gabriel Paez, a member of the Pennsylvania Horticultural Society’s Tree Tender Community Advisory Committee and the city’s new Environmental Justice Advisory Commission. “I do not believe that it is comprehensive in terms of everything that needs to change in order to bring the city up to speed. But … something that I personally like to see is movement and action.” The bill, sponsored by at-large Councilmember Katherine Gilmore Richardson, expands existing requirements for developers around preserving and planting trees, as well as sets up new fees for developers if they remove trees and don’t replace them. It was among dozens of measures Council passed during its last meeting before the body went on summer break — and is part of the city’s plan to increase the city’s tree cover to 30% within 30 years. This goal requires the city to reverse the current trend. The city lost 6% of its canopy between 2008 and 2018, largely in residential areas. As of 2018, 20% of the city was covered by trees…

Wooster, Ohio, Daily Record, June 28, 2022: Storm effects linger: Area tree services backed up with storm-related clean-up calls

Rogue Tree Solutions in Smithville has an emergency response line, which means that Corey Parsons can get calls at any time of the day. So when he got a call at 12:30 a.m. on June 14 for a downed oak tree, he wasn’t surprised. What did surprise him was the additional nine calls, all for fallen trees, that came in minutes afterwards as he was trying to get ready to leave and respond to the first call. For the rest of that day and following two weeks, Parsons said he and his staff have been cleaning up debris following the storms that hit the area June 13. As of Friday, June 24 he estimated that they had responded to roughly 200 to 300 calls. Parsons is not alone as several other tree service and landscaping companies in the area have been helping communities clean up storm damage with several weeks’ worth of damage to still clean up. With the extra work comes delays to their normal jobs and some companies say it may take weeks to get back on track with their normal services and customers…

Conroe, Texas, Courier, June 23, 2022: Conroe adds tree buffer requirement to tree ordinance

The Conroe City Council continued work on its tree ordinance Thursday amending it to add tree buffer zones for all new residential development. Tommy Woolley, director of capital projects and transportation, said the amendments will create a 25-foot tree buffer around new residential development if there is existing residential development adjacent to it. While the early version of the amendment included a provision for a 50-foot temporary buffer along the front of the development that could be reduced to 25 feet once 75 percent of the development is complete, Councilwoman Marsha Porter said that was not necessary. “It seems we are placing somewhat of a hardship on some developers by having them jump through some hoops,” Porter said. “Seems to me we could eliminate the 50-foot buffer and just get straight to the 25.” However, Porter said if a developer does not follow the ordinance related to the 25-foot buffer and cuts too many trees, that developer would be required to have the 50-foot temporary buffer on any future developments within the city…

Ottawa, Ontario, Citizen, June 28, 2022: City staff considering how to repurpose mounds of tree debris after May’s derecho storm

City staff are figuring out what to do with thousands of tonnes of tree debris and hundreds of streetside stumps uprooted during May’s powerful “derecho” storm. They’re also looking at how to prioritize tree replanting this fall, and are taking applications from residents who want a tree planted on their city-owned street frontage. In a memo to council June 27, public works general manager Alain Gonthier reported that a debris management working group has been created to come up with beneficial ways to re-use tree debris hauled away to city yards after the storm, including wood chips and larger pieces of wood. In city parks – more than 40 per cent of which were affected by the storm – as well as pathways and wooded areas, much of the remaining clean-up will require specialized equipment and contractors and “take some time” to complete, said Gonthier…

Boston, Massachusetts, WBUR Radio, June 28, 2022: The trees were here first

One night late in June, in 2021, a couple of weeks before we were set to move away from our home of 38 years, a brief but ferocious thunderstorm passed through our Cambridge neighborhood. Normally I would have pulled up the blinds so that I could thrill to the sight of lightning forking down to the wet pavement. But on this evening we were engrossed in the last episode of one of the dozens of mystery series that filled our pandemic weeks. Rather than watching the storm, we were simply hoping that it wouldn’t knock out the power before the killer was caught. We didn’t see the lightning cleave the old maple tree across the street from us. But the sound of it falling, the crackle and whoosh of it landing on the second-floor porch outside our living room window — that was enough to overpower the throbbing television score that signaled danger. We opened the door to see half a tree arced over two cars and our narrow street, with a section of power line delicately looped around its trunk. The two houses facing ours were blacked out, but, miraculously, our outside light went on to reveal a gorgeous, glistening canopy of branches and leaves filling the porch…, June 22, 2022: Tree species diversity under pressure

In a new global study of more than 46,000 species of trees, an international team of researchers has shown that many tree species are under substantial pressure and poorly protected. The research team, headed by Aarhus University, has also studied how this situation can be improved by means of ambitious and smart designation of new protected natural areas. Trees play an important role for natural ecosystems, for our climate and for societies across the world. However, recent research shows that many tree species are rare, and are at risk of disappearing. This is why Jens-Christian Svenning, professor of biology at Aarhus University, took the initiative to conduct this large-scale research project. He is the director of the Center for Biodiversity Dynamics in a Changing World (BIOCHANGE) and was previously involved in mapping the earth’s tree species…

Guilford, Connecticut, Patch, June 24, 2022: ‘CT Has A Tree Problem:’ Guilford Part Of Eversource Tree Removal Plan

With trees causing 90 percent of outages during storms and severe weather happening more often, Eversource is launching a new, data-driven approach to vegetation management. The energy company has identified electric lines on its network with the worst reliability performance and is looking to collaborate with individual property owners and their community leaders to look at the vegetation along those lines. Guilford is one of 13 communities in the program. Using 10 years of outage data, Eversource arborists are working to understand how concentrated tree work, including retention and planting of appropriate utility-compatible trees can strengthen the grid to make it more resilient during powerful storms “Our goal is to find a collaborative solution with our customers and communities that has the potential to significantly reduce tree-related outages during storms,” said Eversource Vice President of Operation Services Steve Driscoll. “We have the data that shows how and where trees are impacting service to our customers and we’re looking to develop new ways to turn the worst performing lines into the most reliable circuits in our state, while planting appropriate trees to maintain the state’s character…”

Case of the Day – Thursday, June 30, 2022


Doug Van Dyne had big plans for getting folks back to nature. He wanted to build a nature trail along a ravine that split his property and that of his waffling neighbor, Eunice North. People could enjoy the birds, the babbling brook, the scent of pine… that kind of thing.

If you ever wonder whether it’s a good idea to get agreements in writing, Doug’s $70,000 mistake will settle that question for you. Because Doug’s nature path would meander a bit onto Eunice’s side of the ravine, he told her about his plans for the trail. Eunice, who admitted that she really had no idea what Doug was talking about, said she just “shrugged my shoulders” and replied that “I guess it would be okay.”

To Doug, that was like the green flag at Indy.  But little did he know that Eunice promptly began to fret about her confused acquiescence. She had trouble sleeping for her worry, and finally asked a friend about the plan. Her friend told Eunice the trail idea was a mistake. Armed with this advice, Eunice said, she reneged. She claimed she told Doug that she didn’t want him around.

“No probalo,” Doug – who had no intention at all of honoring Eunice’s change-of-heart – allegedly responded. Regardless of his actual intentions, Doug promised Eunice that he “would go to a different plan.”

That different plan seems to have involved having his contractor run the bulldozers at full throttle instead of half throttle. By the time the diesel fumes cleared, 20 of Eunice’s trees had been ground under Caterpillar treads and the trail encroached on her land.

Eunice sued Doug for trespass, loss of lateral support, and loss of trees. The jury awarded Eunice $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim. It mattered little that Doug and the contractor both told a different story, the bulldozer operator testifying that Eunice had agreed to Doug’s plan. The jury believed Eunice.

Juries do that, often buying one side of the story and not the other, many times against common sense. We don’t know that that happened here, but it sure did not help Doug that he had not bothered to have the property boundaries surveyed before the ‘dozers started dozing.

Much of Doug’s appeal focused on damages. The jury agreed that Doug’s dozing had made Eunice’s side of the ravine unstable. Eunice’s expert testified that there were three ways to repair the damage, but none of the tree would restore the ravine to its pristine state. Doug argued that said because the land could not be repaired to the way it was before the bulldozers rolled through, then the diminution of the fair market value of the ravine was all that matters.

Not so, the court said. The law does not require that the evidence show that the damage can be repaired so as to make the property as good as new. While it is a general rule of Iowa law that the cost to repair property is the fair and reasonable cost of repair not to exceed the value of the property immediately prior to the loss or damage, all Eunice was required to do was to establish a fair and reasonable cost to fix things up in order to arrest further deterioration and make the place as good as it can be made. In this case, Eunice showed that she had three means of stabilizing the steep bank after Doug’s earth-moving frolic, and only one of those made any sense. She established the cost of that repair, and the value of the property before the damage.

Because the damages did not exceed her expert’s $129,000 repair price tag, it was clear the jury fulfilled its function in weighing the evidence.

Next time, Doug, get the landowner’s OK in writing. Call a surveyor. Stake the property boundaries. Surely that’s cheaper than $71,000.

North v. Van Dyne, Case No. 16-0165 (Ct.App. Iowa, Sept. 13, 2017). Douglas Van Dyke hired Heck’s Dozer, Inc., to build a trail along a ravine between his property and adjacent land owned by Eunice North. Twenty of North’s trees were removed during the trail’s construction, and a portion of the completed trail encroached upon North’s property. Doug said Eunice gave him permission. Eunice said she initially sort of equivocated, but later told Doug in no uncertain terms that he was to stay off her land.

Doug said he would do so, but he never had the land surveyed or staked, and his guess as to the location of the property line was by guess and by gosh. Doug’s contractor said he met with Eunice, and she approved the plans. Eunice said she had never met the contractor.

Eunice testified that after she told Doug to steer clear of her property, she heard a “‘loud commotion.’ Standing on her deck, she saw ‘two pieces of heavy equipment’ below and ‘trees… flying.’ She decided not to go into the ravine to check on the commotion because she was ‘afraid’ she would get ‘hit with something,’ and she had physical difficulties getting ‘down there.’ Suspicious of an encroachment on her land, she commissioned a survey. The surveyor confirmed her fears.”

Eunice sued Doug for trespass, loss of lateral support, and loss of trees. The jury awarded her damages of $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim, Doug appealed.

Held: Eunice amply proved that Doug should pay treble damages under Iowa Code § 658.4 (2013). The statute requires the damage to trees be committed willfully or without reasonable excuse.” The term “willfully” has been characterized as an intentional and deliberate act without regard to the rights of others. Here, the Court of Appeals said, a reasonable juror could have believed that Eunice said “no” the jurors could have found Van Dyke “acted… without reasonable excuse.”

The jury additionally could have found that Doug’s failure to commission a survey before building the trail denied him any reasonable excuse for the trespass. The testimony established that Doug relied on an “old fence,” “old posts,” a “shed,” and a “roofline” to gauge the boundary.

The measure of damages is the cost of repair, as long as that cost does not exceed the value of the property prior to the damage. Doug complained that because Eunice’s expert testified only that the continued deterioration of the property could be stopped by stabilizing the steep bank, she was not able to show that the property could be repaired to its original state.

The Court of Appeals held that nothing requires that the repair estimate be enough to restore the land to its state before the damage. As long as Eunice provided evidence of the fair market value of the land before and after the damage, and a repair cost that is less than the value of the place before the damage – which she did – she met her obligation. Here, the damages awarded by the jury were higher than Doug’s estimate of $2,500.00 to fix it, but well below Eunice’s estimate of $127,000. Plus, the jury’s $50,000 award for trespass and lateral support was well below Eunice’s evidence that the land was worth $250,000.

The damage to the trees was assessed separately, with the value of the lost timber found to be $6,700, trebled to $20,100.

– Tom Root


Case of the Day – Wednesday, June 29, 2022


crazy160718Summer has just begun, astronomically speaking, although it seems like it’s been here since the first 90-degree day in early May. Not that I’m complaining. Swimming, biking, hiking… summer can hang around as long as it likes.

Yesterday, my bride and I wandered through Vermilion, Ohio, for some ice cream at Dairy Dock (premium-quality soft-serve, with prices to match). After a couple years of COVIDpox, Vermilion seems like summer the way summer should be. Tourists everywhere, the cottages along the Lake Erie shore full of vacationers, boats cruising in and out of the marinas… Hot fun in the summertime, as Sly puts it.

Just for a moment, I felt that summertime twinge that the days are already running through my fingers like the sands of an hourglass. Oh for the mythical endless summers we almost believed were possible when we were kids!  

To all those folks who complained in April about the cold weather… I hope you’re happy now. It’s hot and muggy and bright… perfect for stopping by the old swimming hole, a place where my friends and I have had a lot of fun (back in the pre-social distancing days). And, sadly, a place where tragic things can happen.

We must make extra effort to be caerfull careful. Especially with July 4th upon us, this might be a good time to consider due care, that is, our duty of care to others.

In a negligence action, a plaintiff generally has to show that (1) the defendant had a duty of care in relation to the plaintiff, (2) the defendant failed to conform its conduct to the requisite standard of care; and (3) an injury to the plaintiff was proximately caused by the failure.

Do you really want to be eating food that's staring back at you?

That’s what “fisheye” is all about: Do you really want to be eating food that’s staring back at you?

The duty of care is a moving target, depending to a large extent on the relationship of a defendant to the plaintiff. If someone delivering your double-anchovy pizza and atomic wings falls into an open hole in your front yard, the law treats your liability a whole lot differently than if, say, a thief sneaking around at night trying to steal your garden troll statue falls into the same hole. (But even if the law doesn’t wonder, we’re puzzled that you’d order a double-anchovy pizza).

No-DivingIn today’s case, a young man was paralyzed for life when he dove into the lake at his parents’ house. He had made the same dive countless times before, but the defendant in the case — the non-profit corporation that owned the lake — had recently installed a dredge pipe underwater near the shore. The pipe apparently was just below the surface of the lake.

The lake’s owner argued that the young man was merely a licensee, not an invitee. The difference was crucial, because a licensee pretty much takes the property in the condition he or she finds it. The trial court agreed that the plaintiff was much more than that, and after a jury trial, the young man was awarded $1 million.

The appellate court looked at the corporate purpose of the non-profit lake owner, as well as the terms under which it acquired the lake from the public utility that had owned it previously. Both required that the lake be maintained for public purposes, despite being ringed with private homes, and that evidence convinced the Court of Appeals that the young man wasn’t just someone who was using the lake with the permission of the defendant non-profit corporation. Instead, he was an invitee, someone to whom an invitation had been extended to enter or remain on land for a purpose for which the land was being held open to the public. As such, the landowner had a much higher duty of care to the young swimmer, a duty it violated by not being more careful in installing and marking the dredge pipe.

Not all shallow water is so well labeled.

Not all shallow water is so well labeled.

Shafer & Freeman Lakes Environmental Conservation Corp. v. Stichnoth, 877 N.E.2d 475 (Ct.App.Ind., 2007). Twenty-six-year-old Justin Stichnoth was visiting his parents at their house located on Lake Shafer. During a conversation that day, Justin’s father, Kerry, told Justin about a dredge pipe that Shafer & Freeman had installed in the channel near their dock. Kerry explained that recently he had gotten his boat “hung up” on the dredge pipe. Shortly thereafter, Justin took a running dive off of his parents’ dock into the channel, something he had done often over the years. Justin struck his head on the dredge pipe, which was located on the channel floor about 17 feet from the dock. Justin was left a paraplegic. He sued Shafer & Freeman, alleging that the firm’s negligence caused his injuries because it didn’t warn that there was a pipe underwater, it didn’t mark the pipe so that it would be visible to users of the lake, and it didn’t use reasonable care in dredging the lake.

Shafer & Freeman denied the allegations of negligence. Later, it filed a motion for summary judgment on the issue of whether Justin was a licensee of Shafer & Freeman. The trial court denied it, and a jury found it liable to Justin, awarding $1 million to the injured plaintiff. Shafer & Freeman appealed.

Be careful when diving into unfamiliar water.

Be careful when diving into unfamiliar water.

Held: Justin was an invitee. Indiana law holds that a person entering upon the land of another comes upon the land either as an invitee, licensee or trespasser. The person’s status on the land defines the nature of the duty owed by the landowner to the visitor. Licensees have a license to use the land and are privileged to enter or remain on the land by virtue of the permission of the owner or occupier, but they take the premises as they find them. Invitees, on the other hand, are owed a much higher duty of care. The decisive factor with regard to whether a landowner has extended an “invitation” or “permission” is the interpretation that a reasonable man would put upon the owner’s words and actions, given all of the surrounding circumstances. Here, the Court found, the lake was held open to the public, even though it was surrounded by private property, and thus Justin — who dove off a dock and struck his head on a dredge pipe located on the channel floor — was an invitee rather than a licensee for purposes of personal injury action. The Court held that the articles of incorporation of Shafer & Freeman, the non-profit corporation that owned the lake, provided that the corporation would protect and enhance the water quality of the lake in order to facilitate public recreational use and ensure continued public access.

What’s more, the Court said, the agreement by which Shafer & Freeman acquired the title from the electrical utility, provided that Shafer & Freeman would hold the lake for public, charitable, recreational, conservation and environmental purposes. It is not enough, to hold land open to the public, that the public at large is permitted to enter at will upon the land for their own purposes. As in other instances of invitation, the Court said, there must be (1) some inducement or encouragement to enter, (2) some conduct indicating that the premises are provided and intended for public entry and use, and (3) some expectation that the public will not merely be tolerated, but is invited and desired to come.

When a landowner lets local boys play basketball on his vacant lot they are licensees only. If he installs playground equipment and posts a sign saying that the lot is open free to all children, there is then a public invitation, and those who enter in response to it are invitees. So it was with the lake.

– Tom Root

Case of the Day – Tuesday, June 28, 2022


A eucalyptus tree, similar to the one that offended Ms. Cannon

A eucalyptus tree, similar to the one that offended Ms. Cannon.

There was a time, back when people of grit populated the land, that a landowner only had one choice when his neighbor’s trees encroached – to cut ‘em back. The Massachusetts Rule was the coin of the realm: if you didn’t like your neighbor’s tree overhanging your eaves, or its roots wrapping around your sewer line, you only had one option. The courts didn’t want to hear about it. Self-reliance was what it was all about.

Then along came the Hawaii Rule, which suggested that a naturally growing tree could be or could become a nuisance and that an aggrieved landowner could sue for an order requiring its removal. One rule does not necessarily negate the other. So when does one oil up the chainsaw, and when does one fire up the word processor?

The Massachusetts Rule is, generally speaking, a blunt instrument. It’s one thing to cut away branches that pose a threat (or even an inconvenience) to your property. But what if cutting a limb back to the property line leaves a 15-foot leafless stub extending from the branch to the boundary. That’s not necessarily according to ANSI Standard A-300, but on the other hand, you don’t have the right to trim it properly unless your neighbor consents to you coming onto his or her land to do so.

Or, more dangerously, what if you cut back roots to the extent that the tree loses too much subsurface support, and falls on your neighbor’s new Bugatti Chiron? Are you liable? After all, you did no more than what the Massachusetts Rule permitted you to do.

The Hawaii Rule, on the other hand, is Doug Lewellyn’s dream. What an All-American solution – let’s sue! When is harm sensible? When your foundation walls collapse? When a dead branch falls on your Bugatti? When leaves clog the filter on your swimming pool? How much harm is enough?

Joan Cannon lived next to Lamar Dunn. Joan was unhappy with the roots from the Dunns’ eucalyptus tree, which were encroaching underground onto her land, as roots are wont to do. After all, a tree will quite often send roots out 35 feet or more from the base of the trunk, and the root system has little regard for some lines drawn on a recorder’s map.

We’re not sure why Joan was so exercised. Maybe she was naturally crotchety. Perhaps she was unusually territorial. Maybe her neighbor had a nice Bugatti, while Joan drove a Yugo. What we can be sure of is that the eucalyptus roots weren’t really causing any harm.


Sometimes encroaching roots can be an inconvenience.

That didn’t stop Joan from suing the Dunns.  The trial court denied an award of any damages and refused to order Lamar the appellee to remove the offending roots and tree. Joan appealed.

The Court of Appeals considered the classic Restatement of the Law trespass approach, which held simply that if a neighbor owns something that trespasses, he or she has to remove it if there is a duty to remove it, regardless of whether it causes harm or not. That’s the rub, the court said. When does such a duty arise?

The court found guidance in the Restatement on nuisance, and held that a duty to remove offending branches or roots arose when some actual and sensible or substantial damage has been sustained. Joan’s general objection to the unseen eucalyptus roots did not equate to harm. Thus, the roots could remain.

Cannon v. Dunn, 145 Ariz. 115, 700 P.2d 502 (Ariz.App. Div. 2 1985). This case involves the liability of Lamar Dunn, an adjoining landowner, for roots from a eucalyptus tree which invaded the subsurface of land belonging to his neighbor, Joan Cannon. The trial court found that the roots had caused no actual damage, and denied an award ordering the Dunns to remove the offending roots and tree.

Joan appealed.

Held: Dunn did not have to remove the roots. The Court of Appeals rejected Cannon’s argument that it should apply the Restatement (Second) of Torts § 158 (1965), which stated that “one is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally… fails to remove from the land a thing which he is under a duty to remove.”

The Court said that it was “obvious that one must first determine whether there is a duty to remove the object and that in this case § 158(c) really begs the question.” More to the point, the Court observed, was the Restatement (Second) of Torts § 840 (on nuisances), which held that a possessor of land is not liable to his adjoining landowner for a nuisance resulting solely from a natural condition of the land.

Ms. Cannon could not prove any damages flowing from the alleged encroachment ... unlike this guy.

Ms. Cannon could not prove any damages flowing from the alleged encroachment … unlike this guy.

The Court paid lip service to the Massachusetts Rule, noting that Arizona law permitted a “landowner who sustains injury by the branches or roots of a tree or plant on adjoining land intruding into his domain, regardless of their non-poisonous character may, without notice, cut off the offending branches or roots at the property line.” At the injured landowner’s expense, of course.

But when some actual and sensible or substantial damage has been sustained, the Court said, the injured landowner may maintain a nuisance action for abatement of the nuisance, and compel the removal of the branches or roots at the tree owner’s expense. However, where no injury has been sustained, no lawsuit be brought for either an injunction or damages.

– Tom Root

Case of the Day – Monday, June 27, 2022


Lesprit140422Ah, l’esprit d’escalier! Those biting, snappy comebacks we wish we had said at the time. You know, those retorts that sound like Donald Trump’s tweets.

Today’s case is about something akin to that, not rapier ripostes, but rather one of those rather important contract terms — how long the multi-year agreement would last — that both parties kind of wished they had discussed at the time they first made their deal.

And maybe one of them did. To be sure, each probably had what is today called an “exit strategy” in mind. But neither brought it up. And what’s worse, nothing was in writing on the parties’ joint venture to raise and harvest peaches. Samuel Goldwyn was right when he observed that “a verbal contract isn’t worth the paper it’s printed on.”

What’s surprising is that their verbal deal lasted as long as it did. Invariably, however, problems ensued. When Miami Valley Fruit Farm wanted to terminate the deal after about 20 years, Southern Orchards protested that the length of the venture was for the useful life of the trees, meaning that the deal would go on until the trees were worn out. It sort of turns the old Stripes line on its head: you can’t go … until all the plants die.

The Court agreed, because that was the only interpretation that made sense to it. You see, without a contract in black and white, everything was pretty gray. Think of how much they saved by not hiring lawyers to write up some boring old detailed contract. Probably less than 5% what they spent litigating the issue 20 years later …

verbalk140422Miami Valley Fruit Farm, Inc. v. Southern Orchard Supply Co., 214 Ga.App. 624, 448 S.E.2d 482 (Ga.App., 1994). Southern Orchard Supply Co. and Miami Valley Fruit Farm entered into an oral agreement whereby Miami Valley, which owned the 295 acres of land, purchased peach trees, and Southern Orchard planted, cultivated and harvested the trees. Under the agreement, which has been in effect about 20 years, the parties equally divided the net profits from the sale of each year’s peach crop.

After the 1993 peach crop was harvested and sold, Miami Valley told Southern Orchard that it was terminating the oral agreement and that Southern Orchard would not be allowed to cultivate and harvest the 1994 peach crop. Southern Orchard sued for an injunction, arguing that it had made substantial investments in the planting and cultivation of the peach trees and in equipment and packing facilities based on the mutual understanding of the parties that the agreement would continue for the “economic life” of the peach trees.

The evidence showed that after a peach tree orchard is planted, the trees have to be cultivated for years before they mature enough to bear fruit and begin to produce profitable, full crops. Once mature, the trees have an “economic life” for an indefinite period of years, during which they produce profitable crops each year until their fruit production declines to the point where they are no longer profitable and new trees must be planted. The “economic life” of the trees varies based on factors such as the variety of the peach and cultivation techniques. The trees at issue still had years of “economic life” remaining.

Southern Orchard argued the agreement had to last for the “economic life” of the trees in order to provide for the recoupment of its expenses. Miami Valley argued there was no agreement between the parties for any specific duration of the contract, that the parties considered the agreement to run from year to year, and that in any event, the “economic life” of a peach tree could not provide the agreement with a definite term since the duration of the life cannot be determined with any degree of certainty. Accordingly, Miami Valley argued it had the right to terminate the agreement.

The trial court held that there was an enforceable oral contract for Southern Orchard to cultivate and harvest the peach trees on the land at issue for the “economic life” of the trees, and because Southern Orchard had no adequate remedy at law for the breach of the agreement, the trial court could grant injunctive relief, ordering Miami Valley not to interfere with Southern Orchard’s performance of the agreement for the 1994 peach crop. Miami Valley appealed.

stitch140422Held: The injunction against Miami Valley is upheld. The Court of Appeals held that the question as to the length of time the contract remains in force is governed by the circumstances of each particular case. Here, the Court said, evidence showed that the parties intended the employment contract to continue for more than a single crop season. Considering the particular circumstances and expenses incurred to plant, cultivate and harvest the peach trees, the Court found that the parties agreed that the employment contract would continue for as long as the trees produced reasonably profitable crops, the “economic life” of the peach trees.

The old aphorism that a “stitch in time saves nine” is worth recalling here. A little consideration to all of the material terms of the agreement at the outset – perhaps a few bucks spent on a lawyer whose forte is thinking about all the “what ifs” that the parties aren’t considering ­– would have saved a lot of time and expense two decades down the road.

– Tom Root


Case of the Day – Friday, June 24, 2022


prison151202Our topic today is an institution built on second chances – bankruptcy. It’s about to become very popular, with a lot of tight-margin businesses – after a couple years of being beaten down by the pandemic, flogged by supply-chain issues, plagued with labor shortages and high fuel prices – are being pushed over the edge by the coming recession.

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

Bankruptcy is one of the important developments of our modern society, a means to give people who have made a lot of financial mistakes a fresh start. You’d be surprised who’s gone down. P.T. Barnum went banko, and then got into the circus business. Walt Disney got wiped out in bankruptcy, losing his Laugh-o-Gram business. He went to Hollywood and got into animation. For that matter, Donald Trump – whose presidential legacy is fast going bankrupt – is the old Boffin of Bankruptcy himself (four times to the courthouse for companies he controlle) . Abe Lincoln went bust in 1833. Ulysses S. Grant was financially embarrassed after he left the presidency, and wrote his memoirs to pay off the debts. Harry Truman’s haberdashery failed, and it took him years to pay off his creditors (he refused the dishonorable but efficient bankruptcy route).

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

busted151202The difference is important. A debtor who injured someone else because he or she negligently ran into that someone’s tree with a car could have the debt discharged. But if he or she deliberately came on someone else’s land, for example, to cut down a Christmas tree and carry it home, the debt that misconduct represented would not be forgiven.

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

fico151202As for the maliciousness of the injury, the Bankruptcy Court found that it was enough that the state court jury had assessed punitive damages against Harper. The jury couldn’t have done that, the Bankruptcy Court said, unless it was clear that Harper knew his conduct was likely to cause harm. And as for the treble damages, the Court said, those are part of the judgment, and those aren’t dischargeable either.

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

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

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

pig151202Held: The judgment could not be discharged in bankruptcy. Quadrangle argued that the judgment obtained against Harper was nondischargeable under 11 U.S.C. § 523(a)(6) as a debt for a “willful and malicious injury by the debtor to another entity.” Here, the issue was whether Harper’s actions constituting trespass and conversion of timber were willful and malicious, as required to except a debt from discharge under § 523(a)(6).

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

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

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

– Tom Root