Author: TLRoot

Case of the Day – Tuesday, September 30, 2025

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A RATHER SURPRISING HOLDING FROM A DELAWARE TRIAL COURT

In this tree law gig, I read a lot of cases. After a while, reading between the lines gets a lot easier.

Today’s case, which I decided was nothing special, was just about some neighbors who were over-the-top haters of the defendant. The defendant seems like a guy whose crime was that he apparently had the effrontery to move in next door and then fix up the place.

The trial court’s long opinion had flushed away most of the plaintiffs’ breathless and frantic complaint – and “flushed” is the correct verb for most of the claims the tin-foil-hatted neighbors made against the defendant– when I got to their claim that defendant Bill Collison had “damaged a maple tree near the property line by shaving the trees directly up from the property line.”

“Holy Massachusetts Rule!” I muttered to myself. Everyone knows that this claim should be summarily tossed, because the Massachusetts Rule is as universally accepted as is turkey at Thanksgiving. Assuming Bill did “shave” the tree at the property line, that’s perfectly within his rights.

Much to my shock, the Court disagreed. It held that the right of “self-help” trimming of encroaching branches is not established in Delaware, and if this court was going to do it, it would not do it on summary judgment. It became obvious to me that whatever else Judge Calvin Scott, Jr., of Newark, Delaware, reads with his morning coffee, it sure isn’t this blog.

It did not take long to find reason to question the Judge’s refusal to grant summary judgment on this issue. In the 1978 Delaware Chancery Court decision Etter v. Marone, the court ruled

At the same time, certain generally accepted principles obtain with regard to encroaching trees or hedges. Regardless of whether encroaching branches or roots constitute a nuisance, a landowner has an absolute right to remove them so long as he does not exceed or go beyond his boundary line in the process. 2 C.J.S. 51, Adjoining Landowners § 52; 1 Am.Jur.2d 775, Adjoining Landowners § 127. He may not go beyond the line and cut or destroy the whole or parts of the plant entirely on another’s land even though the growth may cause him personal inconvenience or discomfort. 2 C.J.S. 51, supra.

So the Judge seems to be wrong: Delaware is firmly in the Massachusetts Rule camp.

What with allegations of underground tanks, clogged drainpipes and extreme mental anguish contained in the messy and unsupported complaint, Judge Scott pretty clearly had his hands full. By and large, he acquitted himself masterfully in the opinion, carefully deconstructing the plaintiffs’ complaints. But I’m betting that in about nine weeks, the Judge will be sitting down to a turkey dinner with all the trimmings. When he does, he should reflect that as many of us accept the Massachusetts Rule as will be dining on the same meal that day.

Dayton v. Collison, C.A. No. N17C-08-100 CLS (Super. Ct. Del. Sept. 24, 2019), 2019 Del. Super. LEXIS 446. Margaret Dayton and Everett Jones clearly had it out for their neighbor, Bill Collison. They claimed that since 2014, Bill had removed a significant number of standing trees and about 5,000 square feet of naturally growing plants from the City of Newark’s natural buffer zone, removed a 30-year-old drainage pipe located on his property and filled the remaining pipe with rocks and debris, intentionally altered the natural grade of his property so as to interfere with the natural flow of water, and trimmed a maple tree located on Maggie and Ev’s property along the boundary line. Additionally, they claim that an underground storage tank Bill installed – apparently your garden-variety propane tank – violates Newark’s municipal ordinances.

Maggie and Ev allege Bill’s property is a public nuisance, and that they have suffered “extreme mental anguish and damages of at least a $50,000 loss in the value of their home” because of flooding caused by Bill’s alteration of the grade’ invasion of privacy due to the removal of the buffer zone, being forced to live next to a hazardous condition because of the propane tank, and “damage or potential damage” (guess they’re not sure which) to the structural integrity of their property’s foundation.

They also claim Bill trespassed on their property multiple times to “alter the natural drainage flow of water, construct a berm, cut Plaintiffs’ trees, and take pictures or otherwise spy on Plaintiffs. From this, Plaintiffs claim they have suffered and continue to suffer damages and mental anguish in a sum to be determined at trial.”

Bill moved for summary judgment, claiming that Ev and Maggie cannot bring claims based on the alleged violation of city ordinances, and showing that their claims were baseless.

Held: Summary judgment in Bill’s favor was granted on all claims except the tree-trimming claim.

The Court held that a public nuisance is one which affects the rights to which every citizen is entitled. The activity complained of must produce a tangible injury to neighboring property or persons and must be one that the court considers objectionable under the circumstances.

To have standing to sue on a public nuisance claim, an individual must be capable of recovering damages and (2) have standing to sue as a representative of the public, “as in a citizen’s action or class action.” Here, Maggie and Ev have no right to bring a claim against Bill for alleged violations of the Code and thus, no standing to sue as representatives of the public. The Newark Code creates no rights enforceable by members of the public, and thus, it presents no basis upon which the requested relief may be granted.

To determine whether an implied private right of action exists, Delaware courts ask, among other things, whether there is any indication of legislative intent to create or deny a private remedy for violation of the act. Under the Newark City Charter, the City possesses “all the powers granted to municipal corporations by the Constitution and laws of the State of Delaware, together with all the implied powers necessary to carry into execution all the powers granted..” The city manager is responsible for administering all city affairs authorized by or under the Charter and may appoint individuals to enforce specific ordinances of the Code. The Court held that these reservations showed that the City of Newark intended for it to be solely responsible for enforcing its ordinances and did not intend to create a private right of action based upon ordinance violations.

Claims that Bill’s tree cutting was creating a public nuisance on the floodplain, likewise alleged violation of City ordinances, and thus were claims that Ev and Maggie lacked any standing to bring. As well, their claim that Bill’s propane tank had been installed without a permit alleged a violation of the City Code, a claim only the City could make.

Finally, Ev and Maggie claimed Bill created a public nuisance because he allegedly removed a drainage pipe from his property and filled the remaining pipe with rocks and debris. Outside of the fact that they were able to cite no evidence that any drainpipe had ever existed on Bill’s property, only the City of Newark had jurisdiction and control over drainage.

But Ev and Maggie claimed that Bill created private nuisances, too. A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of their land. There are two types of private nuisance recognized in Delaware: nuisance per se and nuisance-in-fact. A claim for nuisance per se exists in three types of cases: 1) intentional, unreasonable interference with the property rights of another; 2) interference resulting from an abnormally hazardous activity conducted on the person’s property; and 3) interference in violation of a statute intended to protect public safety. A claim for nuisance-in-fact exists when the defendant, although acting lawfully on his own property, permits acts or conditions that “become nuisances due to circumstances or location or manner of operation or performance.” Plaintiffs allege claims under both the theory of nuisance per se and the theory of nuisance-in-fact.

But saying it doesn’t make it so. The Court granted Bill’s motion for summary judgment on the private nuisance claims because Ev and Maggie did not provide sufficient evidence supporting their nuisance per se claim, and did not submit expert reports to show the necessary elements of their claims.

Ev and Maggie also argued that Bill’s destruction of certain trees on their property and his failure to respect known boundary lines also constitute a continuing nuisance. They alleged that they suffered a diminution in the value of their home, in an amount of at least $50,000, as a result of the “nuisance created and maintained by” Bill. Ev and Maggie estimated the value of their home and the loss they had suffered. They argue that, as landowners, they may offer an opinion on the value of real estate. The Court disagreed: “Although Plaintiffs might know the fair market value of their property based on what they paid for it and based on a comparison of their property to other homes in the area, Plaintiffs do not know how each of Defendant’s alleged actions changed the value of their property. To establish how each of Defendant’s actions changed the value of Plaintiffs’ property, Plaintiffs would need to identify and submit an expert report from an expert witness; Plaintiffs have not done so.”

Those tin hats really work — it’s just that THEY want you to think there’s something wrong with wearing ’em …

Ev and Maggie allege that they have suffered “extreme mental anguish” as a result of Bill’s alleged nuisances. The Court ruled that Ev and Maggie “needed to show proof of the ‘extreme mental anguish’ they allegedly suffered through a medical expert. Without expert testimony, the Court is not able to find that Plaintiffs suffered this type of harm or that Defendant’s conduct caused such harm. Plaintiffs have neither identified an expert witness to testify to this matter nor submitted an expert report regarding this matter.”

Ev and Maggie’s only victory came on their claim that Bill damaged their maple tree. They alleged that he damaged a maple tree near the property line by shaving the trees directly up from the property line. Ev and Maggie have identified and submitted a report from an arborist, Russell Carlson, detailing the manner in which the maple tree was damaged by Bill’s alleged cutting back of the branches. The report shows the damage done to the maple tree and estimates the cost of that harm.

Bill responded to their report, arguing that he has a right to engage in “self-help” to the property line. The Court held that “it remains unclear in Delaware whether a defendant has a right to engage in ‘self-help’ by cutting tree limbs that extend onto his property. The Court declines to make a determination on this issue in a motion for summary judgment. Therefore, Defendant has not shown, in the face of Mr. Carlson’s report, that he is entitled to judgment as a matter of law. Accordingly, summary judgment on this allegation is not proper.”

Ev and Maggie argued they are entitled to treble damages pursuant to 25 Del. C. § 1401, Timber Trespass. The Court may award treble damages for timber trespass when the plaintiff establishes that a trespasser “fells or causes to be cut down or felled a tree or trees growing upon the land of another”; 2) that plaintiff’s property was established and marked by permanent and visible markers or that the trespasser was on notice that the rights of the plaintiff were in jeopardy; and 3) that the trespass was willful.

Because Ev and Maggie only alleged that Bill damaged the tree, and did not cut it down altogether, they are not entitled to treble damages.

Finally, Ev and Maggie alleged that Bill intentionally trespassed on their property. The elements of a claim for intentional trespass are that the plaintiff has lawful possession of the land, the defendant entered onto the plaintiff’s land without consent or privilege, and the plaintiff shows damages. The Court held that there was a factual dispute as to whether Bill ever entered Ev’s and Maggie’s land. Thus, Bill was denied summary judgment on the trespass count.

Still, the Court pretty much savaged Ev’s and Maggie’s rather shrill and frantic claim, leaving their all-encompassing nuisance broadside a rather puny trespass and trim of a single tree.

– Tom Root

TNLBGray

Case of the Day – Monday, September 29, 2025

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DON’T BET AGAINST THE HOUSE

As I have noted many times before, the ancient doctrine of sovereign immunity (you can’t sue the king) remains alive and well in this country. You cannot sue the federal government, a state government, or even a city or county, unless the same government you intend to sue has passed a law saying you may do so.

And face it, who is daft enough to give you advance permission to sue them?

That’s why tort claim statutes are written so narrowly. Many of the rights they purport to give are illusory. Today’s case is a great example.

At first blush, the Tennessee Governmental Tort Liability Act seems expansive, letting a private party sue the government for negligence, or even – without negligence – where the roadway is controlled by the government and is dangerous, provided the government has notice of the dangerous condition.

Ah, but the proof of the pudding is in the tasting. Today’s case recites a lot of facts necessary to establish the mood. The facts seem to me (and, I bet, to most fair-minded people) to easily push the plaintiffs over the finish line, making the County liable. However, in the end, the court decided that the evidence was insufficient to even reach a jury.

Getting a court to declare the very government of which it is likely a part to be liable to pay out big bucks is like asking the casino house to even up the odds – not very likely to happen.

Graham v. Bradley County, 2013 Tenn. App. LEXIS 611, 2013 WL 5234240 (Ct. Appeals Tenn. 2013). On July 21, 2008, Ronald Graham, M.D., and his wife, Winifred, were driving their VW convertible past property owned by Henry and Gayle Evans on Tunnel Hill Road. The top portion of a sugar maple tree fell onto the car, seriously injuring them.

It turned out that 25 years before, the tree had been damaged so badly that it had decayed, losing about 85% percent of its strength. Believing that the tree was defective, unsafe and dangerous, the Grahams sued the Evanses and Bradley County. The County asserted that it was immune from suit pursuant to the Tennessee Governmental Tort Liability Act. The Grahams argued that TGTLA immunity should be denied because the County had actual or constructive notice of the tree’s condition. The Grahams eventually settled with the Evanses, but after they did, the County amended its answer to allege comparative fault of the Evanses.

At trial, the County’s road superintendent admitted the County was specifically responsible for maintaining the road and was required to inspect and repair any unsafe conditions. He agreed that the County had taken action to remove other hazards that were above the roads. He said that when conditions on private property affected the roads, he either asked the property owner to remedy the condition or obtained an entrance permit to enter the property and remedy the condition. If the condition presented an emergency situation, the County did not wait for permission. The county did not hire professionals to ascertain whether trees posed an emergent situation, but the employees notified the road superintendent of dangerous conditions. County paved the road, patched potholes, mowed county property near the road, removed litter, and trimmed trees, brush, and bushes near the road.

The road superintendent acknowledged that the tree was visible from the road and that county workers had likely passed by the tree as they responded to complaints and performed general maintenance nearby. He admitted that the tree had been trimmed in 2006 but did not have any record of whether the County trimmed that particular tree even though the County was trimming other trees in the area.

The County was responsible for maintaining about 750 miles of county roads, with “countless” trees alongside the roadways. The County had neither a budget nor the manpower to inspect each tree to determine whether it was in a weakened condition.

The road on which the accident occurred, Tunnel Hill Road, was about 7.4 miles long, passing through pastures and wooded areas. The road superintendent said the County did not touch the trees unless a specific tree posed a hazard. He claimed that he had neither noticed nor received a specific complaint about the tree in question. There had been no other falling-tree accidents along Tunnel Hill Road, but on the day of the accident, the County experienced a severe storm, and the superintendent received about ten reports concerning fallen trees or tree limbs.

Mr. Evans, the owner of the tree, acknowledged that an oak tree had fallen onto the tree. He and his son had once attempted to remove the oak tree but were unsuccessful. He said that anyone walking on the roadway would have noticed the Tree’s limb that extended over the roadway, that the Tree and its limbs appeared to be alive, and that the Tree was as “green as every other tree down there.” He did not notice that the tree had decayed and did not believe it posed a danger. He claimed that there had been a severe thunderstorm the night of the accident, with thunder, lightning, and strong winds. Mr. Evans acknowledged that the tree appeared to have been trimmed at some point but asserted that he had never trimmed the tree.

A board-certified master arborist found that an older oak tree had fallen onto the tree and split the tree, causing one portion to lean over the road. He explained that a casual observer might think that two trees were simply growing side by side. He stated that in reality, the tree had lost about 85% of its strength and had suffered extensive decay. He said that the portion of the tree that was “leaning over the road was damaged” and “badly decayed.” He believed that the tree’s defects were visible from the road. He said that the top of the tree was “too heavy” for the “decayed trunk to support” and that it fell onto the car from a height of about 25 feet. He believed that the wind from the thunderstorm was the “final straw” that caused the tree to fall but asserted that a healthy tree would not have been affected by the storm.

The arborist conceded that despite the tree’s defective state, it yielded green foliage and was positioned among other trees. He asserted that the tree was the largest one in the row and was noticeable because of its size and because of the position of the oak tree. He admitted that one would have to be “looking up in the trees” to see the scar caused by the oak tree. He acknowledged that someone simply walking alongside the road would not notice the tree’s defects, and that even if an untrained observer did notice the defects, they would probably not realize that the tree needed to be removed.

Another decayed limb from the tree had been trimmed in the summer of 2006. The arborist testified that the limb was at a height of 20 to 25 feet and that he had to use a lift to inspect it. He observed no reason for any entity other than the County to have trimmed the tree, and that the person who cut the limb would have had to see the tree’s defects. He believed that county workers performing maintenance on the road would have viewed the tree’s condition and would have been prompted to investigate the condition of the tree if they had been exercising reasonable diligence. If he had been asked, the arborist would have recommended that it “either be pruned or removed.”

Based on all the evidence, the trial court held that the County was immune from liability. The court found no proof that the roadway was unsafe as a result of the presence of the tree, or that the County had constructive or actual notice concerning the tree’s condition.

The Grahams appealed.

Held: The County is immune from liability.

In 1973, the General Assembly enacted the TGTLA (Tenn. Code Ann. § 29-20-201(a)) to codify the general common law rule that all governmental entities shall be immune from suit for any which may result from the activities of such governmental entities.

Passage of the TGTLA constituted “an act of grace through which the legislature provided general immunity to governmental entities from tort liability but removed it in certain limited and specified instances.” The Grahams maintained their claim skirted municipal immunity, based on a simple negligence claim for failure to maintain the county roadways and Tennessee Code Annotated § 29-20-203.

The elements of a negligence claim include (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause. Tennessee Code Annotated § 29-20-205 removes governmental immunity for injuries caused by negligent acts or omissions of county employees. The legislature provided in § 29-20-205(4) that governmental immunity shall not be removed for failure to inspect property not owned by the County.

All parties admit, however, that immunity may be waived for the negligent failure to maintain county roadways. The Grahams argued that the County’s duty to maintain its roadways included a duty to inspect for unsafe conditions that may exist along the roadway and that extend beyond the roadway. The County denied having such a duty.

Here, the County had a duty to maintain its roadways and that the duty likely extended to maintaining obstructions located above the roadway. Duty is defined as “the legal obligation owed by the defendant to the plaintiff to conform to a reasonable person standard of care for the protection against unreasonable risks of harm,” and a duty exists “if the defendant’s conduct poses an unreasonable and foreseeable risk of harm.” A risk is unreasonable where the foreseeable probability and gravity of harm posed by the defendant’s conduct outweigh the burden upon the defendant to engage in alternative conduct that would have prevented the harm. The question of whether a duty exists requires consideration of whether ‘such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of others — or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant.

Here, the Court refused to impose upon the County a duty to inspect every tree that “leaned” over the roadway. Imposing such a duty, the Court ruled, would place an insurmountable burden upon the County and detract from its ability to maintain the roadways. The County maintained its roadways by trimming trees that posed obvious issues and by responding to complaints concerning specific trees, brush, and bushes. The evidence reflects that the tree in question continued to sprout green leaves, was located among other healthy trees, and did not appear to be decayed or damaged to the extent that was discovered after the accident. The County had never received a specific complaint about the tree, and the only evidence offered concerning the County’s interaction with the tree was conjecture at best.

The Grahams also based their claim on Tenn. Code Ann. § 29-20-203(a), which removed “immunity from suit of a governmental entity… for any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, owned and controlled by such governmental entity.”

Suits brought pursuant to § 29-20-203 must show three elements: “The local government must own and control the location or instrumentality alleged to have caused the injury;” The location or instrumentality must be “defective, unsafe, or dangerous;” and the local government entity must have “constructive and/or actual notice” of the condition.

The Tennessee Supreme Court has defined actual notice as “knowledge of facts and circumstances sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts.” “Constructive notice” is defined as information or knowledge of a fact imputed by law to a person (although he may not actually have it) because he could have discovered the fact by proper diligence, and his situation was such as to cause upon him the duty of inquiring into it.

Here, the Court said, the County never received a specific complaint about the tree. While the tree had been trimmed in 2006, and the Grahams argued that the County was the only entity that would have had reason to trim the tree, there was no actual evidence that it was the County that did so. Based on the witnesses’ testimony that the tree did not appear to be damaged or decayed, and the arborist’s testimony that one would have to look up into the trees to see the damage caused by the oak tree, the Court concluded that the County did not have sufficient knowledge of facts that would have required it to investigate the tree’s condition.

– Tom Root

TNLBGray

Case of the Day – Friday, September 26, 2025

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THE LAW OF UNINTENDED CONSEQUENCES – PART 2

I had a secretary once, a delightful country girl who careened from being sharp as a tack to dumb as a stump. One of her expressions, when she would be nattering on about something for what seemed to be hours on end, was, “Never mind me. I’m just talking out loud.”

Courts are constantly getting in trouble for “talking out loud,” saying more in a decision than is necessary. When an opinion, aside, observation or frolic unnecessary to the decision is included in an opinion, it is known as obiter dictum, Latin for “by the way.” Obiter dictum is a concept derived from English common law, wherein a judgment is comprised of only two elements: ratio decidendi and obiter dicta.

One of the early lessons law students learn in their first year is that for the purposes of judicial precedent, ratio decidendi (which means the rule of law on which a decision is based) is the only part of the decision that is binding. Any statement that is obiter dictum is persuasive only.

By the way, lawyers usually call obiter dictum “dictum” for short. If there is more than one piece of dictum in a case, they are pluralized as “dicta.” (That previous “by the way” – in itself a perfect example of dictum – comes to you courtesy of my late and beloved Latin instructor, the incomparable Emily Bernges of Sturgis, Michigan. I had her a half-century ago, but in the firmament of unforgettable teachers, she is the brightest star).

Now to brush up on a little law: if I trespass on your land, you can sue to have me ejected. If you do nothing, and suffer my trespass and bad manners for long enough (usually 21 continuous years, but this can vary by state), I can sue you to quiet title, and the land becomes mine by adverse possession.

Now, instead of squatting on your place, I string a power line across a corner of it. You don’t give me permission, but again, you suffer in silence. It is not adverse possession, because you could continue to use the land under the power line. It’s just that I have taken the right to use your property without your permission, but in a way that is not inconsistent with your rights. If I maintain my power line for 21 consecutive years (at least in Pennsylvania, although different states specify different terms of years), I have not acquired ownership of the land, but I have acquired a prescriptive easement. A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement.

So that’s the progression. If I use your real estate without permission, I am a trespasser. If I remain a trespasser openly and continuously for a long enough period, I either wrest ownership of the land from you or, at the very least, obtain the right to an easement that you cannot revoke.

As we saw in yesterday’s case, Jones v. Wagner, a Pennsylvania court addressed encroaching tree branches and roots. This is unsurprising. Forty-nine other states have followed suit. But where everyone else is content with the Massachusetts Rule or the Hawaii Rule, the Virginia Rule or some amalgam of the three, the Pennsylvania court boldly went where no court had gone before. It decided that the owner of the encroaching trees became a trespasser when the branches overhung or the roots entered the subsurface. Such a holding was as contrary to common sense as it was unnecessary: trees grow, their owner does not control the growth, and simple rules allocating cost and responsibility work for everyone else with the need to resort to pounding the round peg of trespass into the square hole of encroachment.

But the Pennsylvania court did just that. And the holding begs the question: if a tree can trespass (or, more to the point, if the owner of a tree is a trespasser because of how the tree grows), might the owner also acquire a prescriptive easement if the encroachment persists long enough?

And here came the dictum. After foolishly applying trespass to tree encroachment, the Jones v. Wagner opinion speculates whether prescriptive easements could be acquired by tree trespass. That was not an issue in the case. It was pure dictum, talking out loud. But it did not take too long for another party to take the Jones v. Wagner idle musings and run with them.

Koresko v. Farley, 844 A.2d 607 (Commonwealth Ct. Pa. 2004). John and Bonnie Koresko bought a piece of property in Tredyffrin Township in 1986. Several trees, over 21 years old (which is important), grew on their property very near one property line. Branches hang over the boundary with the neighboring property.

That land was owned by Ollie Bower, who sold it to a developer in 1999. The developer wanted to subdivide the property into two lots and build two houses. The subdivision plan proposed the installation of a water line and the construction of a driveway near the boundary trees. Upon learning of the proposal, the Koreskos sued, seeking injunctive relief and money damages. The Koreskos claimed unreasonable interference with an easement. Specifically, they alleged that because their trees’ roots and branches encroached on the subdivided property for over 21 years, a prescriptive easement existed for the tree roots and branches. They assert that the development of the property would unreasonably interfere with that easement.

The trial court rejected the Koreskos’ claim, holding that “Pennsylvania does not and will not recognize an easement for tree roots or overhanging branches.”

The Koreskos appealed.

Held: Encroaching branches and roots cannot create a prescriptive easement.

A prescriptive easement is a right to use another person’s property that is not inconsistent with the owner’s rights and which is acquired by a use that is open, notorious, and uninterrupted for at least 21 years. A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement.

In Jones v. Wagner, a Pennsylvania Superior Court held that overhanging tree branches constitute a trespass. A landowner has the right to compel his or her neighbor to remove of overhanging branches, or the landowner may use self-help to cut the branches back himself or herself.

In discussing the appropriateness of self-help, the Wagner Court mused in a note:

An adverse possession action can often devolve into a pissing contest …

The Restatement notes that a continuing trespass is not a trespass at all if the actor causing the trespass has obtained an easement by adverse possession. Restatement (Second) of Torts § 161, comment d. We cannot help but wonder whether the continued presence of encroaching tree branches, held openly, notoriously, hostilely, and continually for 21 years would create a prescriptive easement in the airspace which they hang. If this would be the case, and we can find no Pennsylvania law which would indicate that a prescriptive easement is not available in this situation, a landowner who suffers actual harm for the first time during the tree owner’s twenty-second year of hostile ownership, might very well be precluded from seeking a judicial, or even self-help, remedy. This result, while not entirely unforeseeable, is anomalous. However, if an action is available without a showing of damage, the landowner has no reason to complain if a neighbor’s tree causes damage after the prescriptive period has run.

Citing this language, the Koreskis argued that their amended complaint sufficiently pleads a cause of action for unreasonable interference with a prescriptive easement. In contrast, the developer argued the Koreskis had not shown that such an easement existed. Specifically, the developer claimed, the encroachment of the tree roots and branches is not “open and notorious” conduct sufficient to create an easement.

The Commonwealth Court ruled that the Koreskis had failed to state a claim for prescriptive easement as a matter of law, for several reasons. First, encroaching tree roots and limbs by themselves cannot notify a landowner of a claim to use the ground. Second, Pennsylvania has never recognized the existence of such an easement. Third, the Court said, “well-reasoned authority from another jurisdiction persuades us that such easements should not be recognized.” Finally, the potential of widespread uncertainty such easements would cause “convinces us that they should not be recognized as a matter of public policy.”

“The requirement that, to be adverse, a use must be open and notorious is for the protection of those against whom it is claimed to be adverse,” according to Restatement of Property, Servitudes § 458, comment h. The requirement enables owners to protect themselves against the effect of the use by preventing its continuance.” To prove that an adverse use is ‘open and notorious,’ a claimant may show that either the landowner against whom the use is claimed has actual knowledge of the use or has had a reasonable opportunity to learn of its existence.

But encroaching tree parts, by themselves, do not establish “open and notorious” use of the land. Neither roots below ground nor branches above ground fairly notify an owner of a claim for use at the surface, the Court said. In the absence of additional circumstances, such as the use of the ground for maintenance or collection of leaves or fruit, roots and branches alone do not alert an owner that his exclusive dominion of the ground is challenged.

The philosophy of the law is that whenever neighbors cannot agree, the law will protect each owner’s rights to the extent possible. Any other result would cause landowners to seek self-help or litigate each time a piece of vegetation starts to overhang their property, fearing the loss of use or partial use of their property as the vegetation grows.

Finally, the Court said, “We consider the consequences of the holding urged by the Koreskis here. Judicial notice can be taken that trees growing over property boundaries and streets, around utility lines, and under [sidewalks are common in Pennsylvania]. A decision suggesting that the prolonged presence of these tree parts assures their unreduced continuation could cause uncertainty. Both the extent of the prescriptive easement and its effect on public and private use are problematic. As a matter of sound public policy, we decline to recognize a new estate which offers uncertainty and invites clarification through litigation.”

– Tom Root

TNLBGray

Case of the Day – Thursday, September 25, 2025

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THE LAW OF UNINTENDED CONSEQUENCES – PART 1

If there’s a Holy Grail of arboriculture law, it’s the Massachusetts Rule, that grand old lady of New England self-reliance. The Massachusetts Rule holds that if a neighbor’s trees’ branches overhang or roots intrude into your land, you cannot sue to have the encroachment removed. All you can do is solve the problem yourself.  As the Massachusetts court put it:

the neighbor, though without right of appeal to the courts if harm results to him, is, nevertheless, not without remedy. His right to cut off the intruding boughs and roots is well recognized [and] in his own hands. The common sense of the common law has recognized that it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.

But it’s always been a little puzzling to me. When your tree overhangs a neighbor’s property, does “harm” have to “result[] to him” before a self-help remedy is permissible? What if you just don’t like those big honkin’ branches overhanging your yard, leaving your prize roses in the shade? Or they sway in a stiff breeze, turning on your back yard motion-detecting spotlight?

The Massachusetts Rule seems to suggest that if the tree isn’t causing “sensible harm,” you can’t touch it.

Sensible harm? What might that be?  I have a beautiful oak tree standing in the corner of my property. Some of the branches hang over the backyard of my neighbor, a guy who is truly a prince of good humor. In the autumn, my oak leaves fill every inch of his yard (downwind from mine) to a depth of nearly a foot. It seems pretty clear to me that if my neighbor decided to trim back my oak to the property line, I could hardly complain.

But I also have a pair of pine trees that soar majestically, extending nearly half of their branches over the fence and into my other neighbor’s airspace. They drop nothing to speak of, and really cause him no problems whatsoever. Does the Massachusetts Rule extend to him, too, and permit him to lop off the overhanging branches (and thus ruin my trees’ symmetry), simply because the branches hang over some of his lawn?

I like my neighbors, and I am not about to delve into the nuances of the Massachusetts Rule in a lawsuit in the local Court of Common Pleas. But, as we can see in today’s case, there are those who are willing to do so, and who have read the Massachusetts Rule’s “if harm results to him…” language as being a hard requirement that harm must result to a neighboring landowner before he or she can oil up the chainsaw and address the overhanging problem.

For their benefit, Pennsylvania courts went out on a limb 25 years ago by applying the law of trespass to overhanging branches and encroaching roots. Today, we’ll read about how that came to be. Tomorrow, we’ll consider a case where a crafty lawyer took the trespass theory (and an ill-advised piece of dictum from today’s case) and tried to spin it towards its obvious conclusion.

Jones v. Wagner, 425 Pa.Super. 102, 624 A.2d 166 (Pa.Super. 1993). The Joneses and Wagners are adjoining landowners, with a fence separating their properties. The Joneses own a row of tall hemlock trees. While they were on vacation, the Wagners trimmed the branches of the trees to the extent that the branches hung over the boundary line separating the neighbors’ property. The Joneses sued, demanding that the Wagners pay them the replacement value of each of the 26 trees that line the boundary, about $31,000.

The Joneses’ theory was novel. They claimed the Wagners owed them damages because the trees they trimmed were not harming them. They argued that even under the Massachusetts Rule, a landowner is only allowed to trim branches and roots to the property line – that is, exercise a self-help remedy – if the overhanging branches or roots are causing him sensible harm beyond the occasional shedding of leaves and twigs. Because the trees were not doing so, the Joneses claim, the Wagners’ trimming was the pursuit of a remedy without a right, and that made the Wagners liable for damages.

The trial judge was having none of it and held that the Joneses had no cause of action. He dismissed their complaint with prejudice, and they appealed.

Held: The self-help remedy available under the Massachusetts Rule does not require prior injury to the landowner availing himself or herself of the remedy.

While, the Court admitted, there does exist some conflict regarding when a landowner may institute an action for injunctive or monetary relief against an adjoining landowner whose trees overhang the property line, one common thread connects all such cases: the landowner whose land is encroached by the overhanging branches may trim the limbs to the extent of the encroachment. The Court noted another decision that said, “The cases are in agreement that trees ordinarily aren’t nuisances; that overhanging branches which merely cast shade or drop leaves on the land are not nuisances; that if under any circumstances overhanging branches or protruding roots do constitute a nuisance it is only when they do sensible or substantial harm; and that, whether nuisances or not, a landowner may always cut away to his property line branches and roots from trees of the adjoining owner.”

(Note: “Sensible harm” appears to be a term used nowhere in law except with respect to tree encroachment, and has nowhere been defined.  The ten cases or so in which the term appears all seem to assume the reader knows what it is, apparently “harm that can be sensed.”  The question as to its meaning reminds me of Supreme Court Justice Potter Stewart’s famous riff on the meaning of obscenity, in Jacobellis v. Ohio: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…”  So what is “sensible harm?” You’ll probably know it when you see it.)

The Joneses’ contention that the Wagners had to suffer “sensible harm” before availing themselves of the Massachusetts Rule remedy “is only relevant if the appellees seek their remedy in a court of law or equity,” the Court ruled. “A showing that encroaching tree limbs, branches, or roots have caused sensible damage is not a precondition to exercising a self-help remedy.”

It is an ancient principle of law, the Court said, that a landowner has the exclusive right to the space above the surface of his or her property, owning everything above and below ground level to an indefinite extent. On the same principle, courts have held that tree branches extending over adjoining land constitute a nuisance – at least in the sense that the landowner encroached on may himself cut off the offending growth.

But whether a suit for injunction and damages may be maintained without proof of actual damage is a point upon which the authorities have not been clear. In some other jurisdictions, damage caused by encroaching branches and roots are never actionable, self-help being the landowner’s only remedy. This is the “Massachusetts Rule.” Others require proof of some “sensible or substantial” damage before an action for damages in trespass is available, while some jurisdictions allow both actions at law and at equity upon this showing. Hawaii allows an action upon a showing of actual damage or upon “imminent danger” of damage (known in the tree law world as the “Hawaii Rule“). Finally, some jurisdictions hold that proof of damage only determines the amount of damages recoverable, and not whether a cause of action exists. These jurisdictions, however, are ones in which statutes, not common law, recognize the existence of the cause of action.

The Court said it is fundamental that a landowner has a cause of action against any person who has committed a trespass upon his or her lands, and it is not necessary for the landowner to allege any actual damage as an element of the cause of action. This is because the harm is not to the physical well-being of the land, but rather to the landowner’s right to peaceably enjoy full, exclusive use of his or her property. In fact, there is a property right in the airspace above the land, which may be invaded by overhanging structures, or telephone wires, by thrusting an arm above the boundary line, or by shooting across the land, even though the bullets hit the surface. Thus, the Court observed, an aggrieved landowner has a cause of action against an adjoining landowner whose trees overhang the boundary line. Otherwise, his or her right to enjoy exclusive peaceable use of the property is diminished.

The continuing presence of the branches and trees overhanging property lines indicates that the nature of the relief afforded to the aggrieved landowner is not simply monetary. The Restatement notes that a continuing trespass is committed by the “continued presence of a structure, chattel, or other thing which the actor has tortiously placed there, whether or not the actor has the ability to remove it.”

A trespass occurs by a mere overhang. Furthermore, given the rather unremarkable observation that trees will tend to grow, the trespass, even if remedied once, is bound to recur just as soon as the trees or shrubbery regenerate. Thus, the trespass is “continuing” and the possessor of land is entitled to pursue a proper remedy.

We are convinced, the Court ruled, that Pennsylvania law “entitles a landowner to protect his property interest by maintaining an action to compel a person who has caused a trespass to remove it.” It is not suggested anywhere that a showing of harm is a prerequisite to recovering in trespass. A landowner may avail himself or herself of every available remedial avenue in an effort to protect the incidents of land ownership. “Anything less, in our view,” the Court said, “is a travesty.”

Thus, the Court concluded that Pennsylvania law affords a full panoply of remedies to a landowner whose property is encroached by overhanging branches or tree limbs (thus following the Hawaii Rule):

• First, an aggrieved landowner may exercise a self-help remedy by either trimming or lopping off the branches to the extent his or her property is encroached;

• Second, if the landowner has incurred reasonable expenses in the course of exercising a self-help remedy, he or she may recoup those expenses from the trespasser; or

• Third, he may, on a trespass theory, seek a court order compelling the trespassing neighbor to remove the trees to the extent of the encroachment and seek appropriate money damages.

Pennsylvania law requires no showing of physical harm or damage to the land before a landowner can enforce his or her right to freely enjoy unencumbered and exclusive use of property he rightfully possesses. The mere “tree trespass” is enough.

The Wagners were only exercising their right to trim the branches and limbs of the Joneses’ encroaching trees. They may not be held liable for doing so.

– Tom Root

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Case of the Day – Wednesday, September 24, 2025

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LOSERS WEEPERS

A few days ago, I wrote about a neighbor boy’s remarkable good fortune in finding a Wham-O Superball, and the law that governed whether he could keep it or had to return it to another claimant. All of that turned out to be moot, as he promptly lost it in a cornfield. But I had so much fun writing about finding lost property that I thought I’d take up the obverse of that coin today – what happens when the lost property was stolen to begin with.

The objet d'art that started it all

The objet d’art that started it all

Now, ripped from the headlines… and based on a true story… I present the tale of poor driving instructor Martha Fuqua, whose purported avocation of haunting flea markets and garage sales brought her a brief shining moment of wealth and fame.

Martha dropped $7.00 on a dusty and faded old painting in a dilapidated frame. Or so her story goes. She says it sat around her place for a few years before she decided to get it appraised at her late mother’s urging. Lo and behold, the painting turned out to be by the French impressionist Pierre Auguste Renoir. What a lucky break for Martha! And it seemed to be worth somewhere north of what Martha had paid for it, about 15,000 times her initial investment.

Everyone loves a story like this, an everyday Joe or Jane unexpectedly becoming rich because of serendipity. Like the German teen who happed across a 1-lb. gold bar while swimming on vacation. Martha’s story was equally compelling – maybe even more so, because she had just lost her teaching position and was training to be a casino blackjack dealer. No question, Martha sure could stand to be Queen for a Day, and maybe stub her toe on a windfall herself right about now.

But alas, nothing ruins a good story like an eyewitness. Or two.

When Martha sought to auction the piece of art in 2012, the word quickly spread that the piece was Renoir’s On the Shore of the Seine, a 5½ x 9-inch landscape. Martha, who began calling herself “Renoir Girl,” was basking in the publicity. Reporters and art enthusiasts tried without success to establish the provenance of the work. Someone eventually tracked it back to the Baltimore Museum of Art. Officials there denied ever having had it hanging on their walls. But shortly before the auction – which was expected to bring Martha over $100,000 – the Washington Post found documents showing that the May family, a prominent patron of the BMA, had loaned the work to the museum in 1937. Museum officials checked again, and this time found records showing the landscape had been reported stolen in 1951.

Enter Renoir Girl’s brother, Matt, who said that he had seen the painting among his late mother’s possessions several years before his sister said she had bought it for the price of a Subway foot-long and a medium drink. A mother who happened to have been an art student in Baltimore in the early 1950s, right when the diminutive painting was plucked from the  museum wall. Other family acquaintances recalled seeing the painting at the Fuqua family’s home in Virginia in the 80s and 90s. Oh, those pesky eyewitnesses!

No impressionist paintings were harmed during this raid.

No impressionist paintings were harmed during this raid.

The BMA complained that it didn’t really care how Martha Fuqua came to possess the work, because regardless, it belonged to the museum. The FBI bravely swept in, shot an unarmed civilian or two, wrestled the painting to the floor, probably tased the frame once or twice, and took possession of the work. Then the courts took over.

The government filed what is known as an interpleader action in Federal court. An interpleader action states in essence that the filer is in possession of some property to which there are competing claims for ownership. It asks the Court to separate the wheat from the chaff and sort out the claims. Ms. Fuqua said that she found the Renoir fair and square… and anyway, she possessed it and possession is nine-tenths of the law. The BMA said that the law doesn’t let anyone, even an innocent purchaser, take title to stolen goods.

United States v. Baltimore Museum of Art, 991 F. Supp. 2d 740 (E.D.Va. 2014): Only two parties remained of the four claimants named by the plaintiff United States of America, Martha Fuqua – who claimed she bought the artwork at a flea market – and the Baltimore Museum of Art. The BMA claimed the Renoir landscape had been reported stolen from its walls 60 years before.

Surprisingly enough to people who follow this kind of thing, the Court actually observed that “the Fourth Circuit has endorsed the truism ‘[t]hat possession is nine-tenths of the law’.” Virginia common law presumes that the person in possession of a piece of property has a superior claim to it, although the presumption can be rebutted by sufficient evidence. The Court noted that one way of rebutting the presumption was by proving the property was stolen because the law was clear that “even a good-faith purchaser for value cannot acquire title to stolen goods.”

Interestingly enough, Pierre

Interestingly enough, Pierre “Pete” Renoir, pictured here, was one of the few interested parties not to make a claim in the case for the landscape at issue.

BMA essentially was bringing a detinue action, a common law action to obtain an order from the court that its property be returned to it from another person – not necessarily a wrongdoer – who for whatever reason is in possession of it. In order to prevail, BMA had to prove (1) a property interest in the item; (2) the right to immediate possession; (3) that the property is capable of identification; (4) that the property is of some value; and (5) that it possessed the property at some time in the past.

The parties didn’t dispute that the property – a painting – could be identified and that it had considerable value. Ms. Fuqua, however, claimed that the museum couldn’t prove it had ever possessed the painting. The BMA produced copies of the 1951 police report, copies of its records showing that the painting had been loaned to it, and copies of board minutes from the early 1950s citing the theft and an insurance claim. (In case anyone wonders, the May family descendants had been named in the suit as potential claimants, but they waived any claim to the Renoir).

Martha Fuqua - the

Martha Fuqua – the “Renoir Girl” herself – argued that possession was nine-tenths of the law. It’s that other 10% that’ll get you, however, as it did in this case …

Martha Fuqua argued that the BMA records weren’t reliable evidence, but the District Court found the internal records showing the painting was loaned to it, that it cataloged it and exhibited it in due course, were convincing. Even more persuasive was the official copy of the police report, proving that the BMA had reported the painting had been purloined. Ms. Fuqua complained that the police report was hearsay, but the Court correctly pointed out that the report wasn’t intended to prove that the painting had been stolen, but rather to prove that it had been reported stolen. Too fine a point for you? Such is the nature of the law of evidence.

The Court concluded that Ms. Fuqua hadn’t offered any evidence that the painting had not been stolen, and the BMA had provided plenty of proof that it had been. As a final “hail Mary,” the Renoir Girl speculated that maybe Saidie May ­– who had loaned the painting to the museum – hadn’t had her husband’s permission to do so. Like that mattered. The Court dismissed this canard as rank speculation.

The painting was ordered back to the museum. And by her reckoning, Martha Fuqua is out the price of a King’s Hawaiian® Pork & Slaw Sandwich from Firehouse Subs… and a Coke.

Martha later said she’d like to put the kerfuffle behind her. One can hardly blame her. As for Marcia “Light Fingers” Fouquet, Martha’s deceased mother, the Romans had a phrase for it: De mortuis nil nisi bonum dicendum est (“Of the dead nothing but good is to be said.”) So we won’t talk about her at all.

–Tom Root

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Case of the Day – Tuesday, September 23, 2025

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SHIPS PASSING IN THE NIGHT

When Al Mattikow finally tripped and fell on a walkway outside of his rented townhouse, all because of a hickory tree that dropped twigs, nuts, leaves, and sap all over the common area, he sued the condo association for negligence and for maintaining a nuisance.

The condo folks defended themselves, showing that they had maintained the tree carefully, using the services of an arborist, to prevent it from becoming a hazard. Because they were so dutiful, the condo folks argued, they could not possibly be negligent. And that meant that the tree couldn’t be a nuisance, either.

“Whoa,” you’re thinking, “that’s so-o-o wrong!” And you are right. The defendant condo association’s arguments and Al’s complaint were like ships passing in the night. It’s laudable that the condo folks took care of the hickory so that it didn’t fall on Al’s pad some dark and stormy midnight. But that was hardly Al’s point. It wasn’t the tree’s falling that bothered Al. It was the falling leaves, twigs, nuts, and sap that covered the walkways, making Al’s perambulation difficult.

Negligence and nuisance both start with “n,” but they’re not synonyms. You can be negligent without creating a nuisance, and you can create and harbor a nuisance without ever being negligent. The condo association conflated the two terms, as well as conflating “safe tree” with “well-behaved tree.”

Viva la difference!

Mattikow v. West Lyon Farm Condominium Association, 2019 Conn. Super. LEXIS 2296; 2019 WL 4344368 (Superior Ct of Connecticut, Aug. 20, 2019). Al and Nina Mattikow rented a condominium unit in which they had lived for a number of years. They had complained to West Lyon Farm Condominium Association, the condominium association that managed the common areas of the property and enforced the regulations, about the extent to which leaves, hickory nuts, pollen, and sap continually fell onto the surface of the common deck near their unit, making walking hazardous. The Mattikows contended that their complaints explained that Al walked with a cane, making him more vulnerable to the conditions of the surface upon which he was walking.

Eventually, Al fell because of the droppings, he claimed, seriously injuring his ankle.

The Mattikows sued, alleging negligence and nuisance. The Association argued that pursuant to the bylaws and rules of the association, to which the Mattikows were bound by their lease agreement, the deck was considered to be a “limited common element.” A “limited common element” benefited one condo unit over the others, due to its location, and the condo unit that most benefited was responsible for maintenance, including clearing leaves and other debris. The Association claimed that under the bylaws, it had no duty to maintain the surface of the deck.

The Association moved for summary judgment, claiming there was no issue of fact – it simply had no duty to maintain the premises upon which Al fell, and conversely, Al had the obligation to maintain the deck surfaces himself.

Held: The Association’s motion for summary judgment was denied.

In addition to claiming negligence, Al claimed that the Association is liable under a theory of nuisance. The Association was dismissive of the claim, arguing that it is derivative of the negligence claim such that if the Association wins on the negligence count, it will necessarily win on nuisance as well. But that ain’t necessarily so.

The Court noted that “the elements of nuisance are different—otherwise it wouldn’t be a distinct cause of action. Simplistically, private nuisance is based on a theory of invasion of property rights rather than a breach of the duty to use reasonable care to avoid causing harm to others. Thus, even if there were no duty to maintain the deck on the part of the defendant, as the defendant vigorously argues, the lack of any duty of maintenance or control over the deck would have no automatic consequence for the nuisance claim… Generally speaking, a duty of maintenance or right of control over the affected premises is irrelevant to a claim of nuisance, which focuses on the conduct of a party external to the affected property and the effect of that conduct on the use of the affected property.”

The Court noted that there were at least a few allegations of negligence that focused on the tree depositing debris, rather than a claimed duty to clear the debris. The main focus, however, is the common area owner’s responsibility, including the hickory tree, for the debris constantly being rained down on the deck. The Association, the Court complained, paid more attention to the clearer issue of lack of duty to maintain and less attention to possible liability emanating from the claimed negligence relating to the tree, for which the defendant was responsible.

Factually, the Court said, the evidence showed the Mattikows had lodged numerous complaints about the tree. The Association called in a licensed arborist, and he had inspected the tree on a number of occasions, repeatedly giving the tree a clean bill of health as long as it was properly pruned and had sufficient cables to ensure stability. The focus of the inspections by the arborist was on whether the tree was likely to fail. He also focused on the tree’s stability, given the apparent shallowness of the root system. The Association did not ask the arborist to evaluate the extent to which nuts, leaves, sap, and branch detritus were being deposited on the deck of the Mattikows’ condominium unit or whether anything could or should be done in that regard.

The Mattikow complaint claimed the Association was negligent “[i]n that it failed to trim, remove or maintain the hickory tree or to prevent the deposit of materials on the subject deck in that it failed to remedy the condition of the deck as described in paragraph four in the deck although it or should have known that such a condition(s) existed.” In turn, the condition described in paragraph four is that there was “an accumulation of materials, including but not limited to sap, mold, liquids and acorns from a large hickory tree, whose branches and limbs hung directly over said deck.”

The Association argued that it had undertaken to trim and maintain the hickory tree. Specifically, the arborist had been called in 2013, and his recommendations had been promptly followed. He was again called to inspect the tree in 2015, and his recommendations were implemented promptly. He came again in 2018, at which time his assessment was that as long as the Association “continued to prune and monitor the tree, the tree posed no hazard.”

And there was the problem, the Court said. The Association focused on whether the tree was a “hazard,” that is, not viable and likely to fall. But, the Court said, these conditions “are irrelevant to the claims being made” by Al and Nina.

The Court noted that the Association’s evidence said nothing about whether the tree should have been removed, for reasons unrelated to its viability or likelihood of toppling or shedding large branches, despite the fact that removal was the Mattikows’ stated goal. The Association did not address the issue of the existence or nonexistence of a duty to “prevent the deposit of materials on the subject deck.”

The Court compared the situation to Connecticut General Statute § 13a-149. In the absence of an ordinance enacted pursuant to General Statutes § 7-163a (and limited to snow/ice conditions), a municipality is liable for the maintenance of sidewalks and the abutting property owner cannot be held responsible for any injuries caused by a failure to maintain the sidewalk, even if there is an ordinance directing the abutting property owner to maintain the sidewalk. However, if a property owner is responsible for creating the condition on the sidewalk — and that often is a result of depositing snow on the sidewalk or having a drain/downspout releasing water onto the sidewalk which subsequently freezes — then despite the absence of any legal duty to maintain the sidewalk, an abutting property owner may be held responsible for injuries resulting from a condition causally related to the conduct of that owner of the abutting property.

The Association is in a similar role here, the Court said. “It is in control of the common areas abutting the condominium unit for which the occupant of the condominium unit has primary responsibility of maintenance. It is a situation on property over which the defendant had no control [that emanates] from property within the control of the defendant, with an ability of control implicating the condition causing an injury to the plaintiff.”

Returning to the nuisance claim, the Association rather perfunctorily asserted that if it is right with respect to the claim of negligence, then necessarily the nuisance claim must also be a matter for which the defendant is entitled to judgment as a matter of law. This is wrong. To succeed under a nuisance theory, a plaintiff need not establish the predicate for a negligence claim. An invasion of a person’s interest in the private use and enjoyment of land by any type of liability-forming conduct is a private nuisance. The invasion that subjects a person to liability may be either intentional or unintentional.

The generation of malodorous smells offensive to neighbors can form the basis for a private nuisance, and the location of the odor-generating activity is an appropriate factor to be considered. The odors do not have to be formed negligently. “The benchmark,” the Court said, “is the reasonableness or unreasonableness of the interference with the ability of another (the plaintiff) to enjoy his/her property.”

The Court ruled that it could not grant summary judgment in favor of the Association on the nuisance claim, particularly given the court’s focus on the negligence claims that did not implicate possession and control over the deck, but rather control over the tree on the property, which was within the defendant’s control. Those claims, the Court said, were closely aligned with the possible existence of a private nuisance.

– Tom Root

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Case of the Day – Monday, September 22, 2025

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“THE BEST GAME OF MY LIFE”

In Caddyshack – arguably the greatest movie ever made (besides Gone With the Wind and Attack of the Killer Tomatoes) – there is a memorable scene in which Assistant Greenskeeper Carl Spangler (played by Bill Murray) – impressed into caddying for The Bishop (played by Henry Wilcoxon) – convinces him into continuing a solo 18-hole game into the teeth of a worsening gale.

Life sort of imitated art one September day 15 years ago. A 12-year-old golfer named Ryan Korengel and his friends kept playing in worsening conditions. Of course, they did – they were 12-year-old boys… would you expect anything less? A tree branch fell on Ryan, injuring him severely.

Ryan’s parents promptly sued everyone who had touched a golf club that day, including the Hamilton County, Ohio (Cincinnati) Park District. Of course they did – they were 21st-century American parents… would you expect anything less?

The interesting note is that, after a 2019 decision on summary judgment, this case was finally set for trial some 11 years after the event being litigated. Young Ryan can now legally swill a beer while he plays the front nine. He’s still playing golf (now with an MBA and a new bride), although the tree injury left him partially disabled. His story has been told on the Golf Channel, and it’s sort of inspiring.

But part of the tragedy for Ryan and the defendants and everyone involved (except the lawyers, of course) is that the case took more than a decade to resolve. The only thing longer and more tedious than watching 18 holes of golf is watching the American justice system.

Korengel v. Little Miami Golf Ctr., 2019 Ohio App. LEXIS 3787 (Ct.App. Hamilton County, September 13, 2019). Twelve-year-old Ryan Korengel and three other boys paid to play golf on the nine-hole, par-three golf course at the Golf Center, which was owned by the Hamilton County Park District. The Golf Center advertises to golfers that it will “attempt to notify them of potentially severe weather conditions” by sounding a siren, communicating the recommendation to seek shelter or vacate the course.

When the boys teed off at about 1 p.m. one September day, the weather was warm, sunny, and breezy. As they progressed from hole to hole, the wind increased. The golf course play coordinator told the boys to pick up their pace near the fourth green, but he never warned them about the approaching storm.

As the boys teed off on the sixth hole, the winds became stronger. On the seventh hole, the boys began to hear tree limbs cracking and saw tree limbs breaking and falling from trees in the woods adjacent to the course. By the time the boys teed off on the eighth hole, they could see trees swaying and heard more cracking of limbs. At around 2:30 p.m., Ryan was preparing to putt on the eighth green when tree limbs from a nearby silver maple tree fell towards him. One struck him in the head, resulting in serious and permanent injury.

Before Ryan’s injury, no one from the Golf Center activated the clubhouse siren. Everyone agreed the wind caused the branch failure. In fact, the winds that day caused a lot of damage in the Greater Cincinnati area, including at the Golf Center.

The Korengels sued the Park District (and several other defendants, not relevant here) alleging negligence and recklessness. The Park District moved for judgment on the grounds of political-subdivision immunity. The trial court denied the motion in its entirety. Appellants then appealed the denial of the motion to this court.

Held: Summary judgment before trial should not be granted to the Park District. The District established entitlement to the general grant of immunity under R.C. 2744.02(A)(1), where issues of material fact exist as to whether the injury, which occurred on the grounds of a building used in connection with a government function, was caused at least in part by the negligence of the park district employees in failing to maintain the tree limb and/or failing to manually activate a storm siren, and was due to a physical defect—an unmaintained tree limb—on those grounds, as required for the physical-defect exception to immunity set forth in R.C. 2744.02(B)(4).

Likewise, the Park District was entitled to summary judgment due to the immunity defense under R.C. 2744.03(A)(5) for a claim of reckless supervision in the failure to warn a 12-year-old golfer of impending weather, because the record contains no facts demonstrating that other potential golfers were turned away due to the weather.

The District argued that the open-and-obvious doctrine and the “act of God” defense barred the claims. In the alternative, they argue that, if there is evidence upon which reasonable minds could differ with respect to whether the physical-defect exception applied, the Park District’s immunity is reinstated under R.C. 2744.03(A)(3) or (5). But whether the danger from a defective tree is open and obvious to a 12-year-old is not governed by the same standard that governs the determination of whether the District’s landscapers and arborists had constructive notice of the defect.

To establish the physical-defect exception, a plaintiff must show that the injury, death, or loss (1) resulted from employee negligence, (2) occurred within or on the grounds of buildings used in connection with a governmental function, and (3) resulted from a physical defect within or on the grounds of buildings used in connection with a governmental function.

“Physical defect” is not defined in Ohio law, but the court has previously defined the term as “‘a perceivable imperfection that diminishes the worth or utility of the object at issue. Here, the Korengels allege in the complaint that the condition of the tree limb and the storm siren constituted physical defects. Thus, when moving for summary judgment, the District presented evidence that the storm siren and tree limb were not defective, and therefore, summary judgment was warranted.

With respect to the storm siren, the District submitted evidence showing that the siren as functioning as intended on the day of the storm. It could be manually activated, but no one attempted to turn it on before Ryan’s injury. There was no evidence to support the Korengels’ allegation that the condition of the storm siren was a physical defect that day.

Admittedly, the Court held, no tree can ever be absolutely safe and immune from branch failure. The mere fact that a tree limb fell does not mean the limb had “a perceivable imperfection that diminished the worth or utility of the limb, a requirement for a physical-defect finding.” The United States Forest Service describes “a ‘hazard tree’ [a]s a tree that has a structural defect that makes it likely to fail in whole or in part.” Consistent with this description, the Court ruled, “we conclude that, where a tree has a perceivable structural defect that makes the tree likely to fail, a falling branch from the tree may be a physical defect for the physical-defect exception to immunity set forth in R.C. 2744.02(B)(4).”

The District submitted a report from the staff arborist, Alan Bunker, who, ten days after the windstorm, examined the tree in question, as well as photographs of the fallen limbs, including the one that had struck Ryan, taken right after the storm. Arborist Alan was not able to inspect the fallen limbs because the Golf Center had removed them along with other storm debris to clear the eighth green for play two days after the incident. Based on what he could review, however, Alan testified that the tree exhibited good health and structure and the broken branches and remaining stubs, which were large in diameter, did not display any decayed wood or malformed branch attachments. Alan believed that the high winds on September 14th caused the broken branches, not any condition of the tree. Other District employees testified that the tree had been maintained, subjected to regular inspections, and appeared healthy before the storm.

The Korengels presented a report from their expert arborist Mark Duntemann. Mark concluded that the tree from which the limb fell had failed because of conditions, clear to a visual inspection, that showed the tree was diseased and a safety hazard. Mark cited, an “excessive” lean, an improper crown – which was “lion-tailed” and comprised of unhealthy sucker growth – and discolored leaves. In his opinion, the lean of the subject tree guaranteed a higher likelihood of a branch failure falling into the high-use area of the green apron where Ryan was located at the time of the injury. Although Mark admitted that wind contributed to the failure, he contended that the tree’s weakened condition also was material to the failure, noting that other trees at the Golf Center did not fail that day.

The Korengels pointed out that the District’s evidence contained no document “specifically” indicating that any inspection or maintenance work was performed on the subject tree, and no one with specialized training said that any such act had been performed.

Ultimately, at the summary judgment stage, the Court said, it must construe the evidence in the light most favorable to the nonmoving party—the Korengels—and may not make credibility determinations. Where, as here, several material facts are in dispute and the expert witnesses for the parties have presented conflicting opinions, the issue of whether the tree limb constituted a physical defect cannot be resolved by summary judgment.

The District argued the Korengels could not show the requisite causation between any alleged defect in the tree limb and Ryan’s injury because of the high winds at the time of the accident. The Court rejected this argument, citing concurrent causation. The relevant portion of the statutory physical-defect exception to liability requires only that the injury “is due to physical defects,” the Court held. This requirement could be met if a trier of fact were to conclude that a physical defect in the tree limb was a concurrent, proximate cause of Ryan’s injuries. To what extent the weaknesses found by the Korengels’ tree expert contributed to Ryan’s injuries is unclear, but the expert’s testimony “creates factual disputes on whether the tree limb was a physical defect and whether it materially contributed to Ryan’s injuries.”

The Korengels must also show the injury was caused by Park District negligence. To establish negligence, the Korengels must show a duty owed, a breach of that duty, and an injury proximately caused by that breach. There is no doubt the Park District employees owed Ryan the duty of care owed a business invitee. An owner of premises owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so its customers are not unnecessarily and unreasonably exposed to danger. This includes an affirmative duty to protect invitees against known dangers and those dangers that might be discovered through the exercise of reasonable care. That duty was heightened because Ryan was only 12 years old. Children have a special status in tort law and the duties of care owed to children are different from duties owed to adults. The Park District was required to exercise care commensurate with the foreseeable danger so as to avoid injury to 12-year-old Ryan.

However, an owner or occupier of land is not an insurer of safety. There is no liability for harm resulting from conditions from which no unreasonable risk was to be anticipated or from those that the owner did not know about nor could have discovered with reasonable care. Id. The Korengels argued that the Park District employees failed to exercise due care in  permitting a hazardous tree to lean directly over the golf course where it was likely to fall on someone and cause serious injury or death. Second, the employees failed to exercise due care in the use of the siren, leaving Ryan without warning of the danger from the approaching storm and the negligently maintained tree on the eighth green.

Generally, where premise-liability negligence revolves around the existence of a hazard or defect, a defendant will not be liable for negligence unless its agents or officers actively created the faulty condition, or that it was otherwise caused and the defendant had actual or constructive notice of its existence. Here, the Court said, the record lacks any evidence of a breach of the duty of care related to maintenance of the tree. The Park District properly maintained the tree, as demonstrated by the deposition testimony of several employees and Alan’s expert report that the tree was in good health, growing normally, and had no defects that might have caused the limb that struck Ryan to break on September 14. Furthermore, the Park District never received any prior complaints about the tree, which had been routinely inspected. Thus, the District maintains the evidence in support of summary judgment shows that no Park District employee breached a duty of reasonable care with respect to the tree.

The Korengels argued that there are numerous questions of material fact raised by both fact and expert witnesses making summary judgment inappropriate on this issue, pointing to the same evidence creating a genuine issue of material fact as to whether the tree limb was a physical defect. This includes evidence undermining or contradicting the District’s evidence that the tree had been maintained and inspected by a qualified arborist, as well as Mark’s opinion that the Park District’s employees’ failure to maintain the tree fell below the standard of care owed a golf patron, when the condition of the tree was so patently bad, and for such a long time, that employees should have discovered it and removed the tree.

The Court concluded the evidence creates a genuine issue regarding whether the Park District employees fell below the required standard of care in this case. Ultimately, the credibility of and the weight to be given this conflicting evidence, the Court held, is for trial.

In its final Hail Mary, the District argued that if the tree was a hazard that should have been discovered before the storm, the hazardous condition was open and obvious, Ryan should have protected himself against it, and they owed no duty to Ryan with regard to the tree as a matter of law. In Ohio, if “a danger is open and obvious, a property owner owes no duty of care to individuals lawfully on the premises.” The issue of whether a risk was open and obvious may be decided by the court as a matter of law when one any only conclusion can be drawn from the established facts.

The Korengels argued that the open-and-obvious doctrine would not apply because Ryan was injured by a flying object, not a static condition. The Court rejected this argument: “The Korengels’ position is essentially that the tree was a hazard in its static condition because it was foreseeable that a limb would break and land on the green on the eighth hole of the golf course and strike a player at any time. The ensuing wind that impacted the tree at the time of Ryan’s injury was not caused by any negligence of the Park District’s employees, and the facts show that the increasingly windy conditions and the resulting effect on the trees in the area could be observed by the golfers on the course long before the limb broke and injured Ryan. Because of these distinguishing facts, we reject the Korengels’ argument that the open-and-obvious doctrine cannot apply in this case because Ryan was struck by a flying object.”

In this case, the facts are in dispute as to whether the Park District employees were negligent in the maintenance of a tree, allegedly obviously defective in its static condition because it was likely to fail, resulting in a branch striking a golfer. Further, the instrumentality that caused movement in the limb of the tree was unquestionably not a human—it was the wind. Thus, the Korengels’ position is wrong.

Still, the Court ruled, “We cannot agree that the facts supporting a determination that the Park District had constructive notice of a defective tree on a golf course would also require a finding as a matter of law that the Park District owed no duty to protect Ryan from the allegedly hazardous tree. The legal standard governing when a golf course has constructive notice of a defective tree on the course is not the same as the standard governing what is an open and obvious danger to layperson 12 year-olds who lack the same discernment and foresight in discovering defects and dangers as older, and more experienced golf course landscapers and arborists.”

As a result, the Court ordered that the case go to trial.

– Tom Root

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