Case of the Day – Thursday, November 6, 2025

Posted on November 6, 2025 by TLRoot tagged.

WHY WRITTEN CONTRACTS CONTINUE TO BE SUCH A GOOD IDEA

I’ve preached it until I’m blue in the face. As movie impresario Samuel Goldwyn put it, “a verbal contract isn’t worth the paper it’s written on.” But it seems like a good point with which to start the new year.

In today’s case, landowner Whatley hired a tree cutter to take down two trees in his yard. Whatley knew from nuthin’ about tree cutting, so he told the guy to do it any way he saw fit. Of course, these two, being good ol’ boys, didn’t bother with a written agreement (which could have been as simple as an estimate with some terms printed on the back).

And what kind of terms did they need? Well, maybe one who said that the tree cutter was an independent contractor of Whatley would have been nice. As it turned out, the cutter and his able assistant dropped the first tree without a problem. When they considered the second tree, which stood on a slope hard against the neighbors’ place, the cutter figured he could drop it in one piece safely. Whatley, who (as we said) knew from nuthin’ about tree cutting, said, “If you can do it, do it.”

But the cutters couldn’t do it. The tree toppled onto the Sharmas’ place, breaking trees and smashing their fountain. And here’s where it got messy. The Sharmas, of course, sued the tree cutter. But they sued Whatley, too, arguing that it was his fault as the employer of the cutters.

Some blunders are obvious …

The law is well established that a landowner isn’t responsible for the negligence of an independent contractor, because the independent contractor has full authority to decide how to do the job himself. But without that written agreement, everyone had to pack the courtroom to explain how the relationship was an independent contract and not an employer-employee relationship.

The Sharmas seized on the offhand statement Whatley made about ‘doing it if you can do it, ‘ and tried to conflate it into Whatley guiding the work. The court sorted things out, but a nice written agreement spelling out the relationship probably would kept Whatley out of court to begin with.

Whatley v. Sharma, 291 Ga.App. 228, 661 S.E.2d 590 (Ga. App. 2008). Whatley hired a tree-cutting contractor to remove two trees from his yard for $1,100 to be paid on completion. The oral contract didn’t specify how the trees should be removed. The contractor arrived a week later with a “tree climber,” whom the contractor had hired in case they needed to fell the trees by cutting them into sections (also known as “topping off” the trees) rather than dropping the trees as an entire unit. They felled the first tree in one piece, and based on the tree climber’s recommendation, the contractor informed Whatley that they also intended to cut down the second tree as an entire unit. Whatley responded, “[I]f you can do it, do it.”

But the second tree, located on a hill on Whatley’s property that sloped toward the nearby property line, twisted as it fell and toppled into the Sharmas’ yard, damaging their trees and outdoor fountain. The Sharmas argued that there was no way the second tree could have been cut down in one piece without damaging their property.

The Sharmas sued the contractor, arguing he was negligent in felling the tree as an entire unit rather than “topping off” the tree. The Sharmas also included Whatley as a defendant. Whatley moved for summary judgment, arguing that he was not responsible for the actions of the tree cutter, who was an independent contractor. His motion for summary judgment was denied, and he appealed.

Held: The summary judgment was granted, and Whatley was dismissed from the suit. The Court began with the observation that, under Georgia law, a person who engages an independent contractor is generally not liable for any torts committed by the independent contractor. The reason for the rule is that since the employer has no right of control over the manner in which the work is to be done, it is regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk and administering and distributing it.

The Court said that the true test of whether a person employed is a servant or an independent contractor is whether the employer, under the contract, has the right to direct the time, the manner, the methods, and the means of execution of the work, or whether the contractor in the performance of the work contracted for is free from any control by the employer in the time, manner, and method in the performance of the work.

Here, the Court held, the unrefuted evidence shows that Whatley engaged a professional tree-cutting contractor for a clearly defined job: to remove two trees for a set price. As a homeowner inexperienced in such matters, Whatley provided no equipment or tools for the job and gave no instructions on how to take down the trees, but rather (in the words of the contractor) gave him “freelance” to cut down the trees as he saw best. The contractor and his “tree climber” made the decision to cut down the second tree as an entire unit, based on the contractor’s belief that he could cause the tree to fall into Whatley’s yard alone.

The Sharmas argued that a single conversation between the contractor and Whatley showed that Whatley controlled the contractor’s actions. They claimed that Whatley’s statement, “if you can do it, do it,” in response to the contractor’s decision to take the tree down as an entire unit showed that Whatley was controlling the contractor’s actions. But the Court said this response merely proved that the contractor was free to cut down the tree as he saw fit: “Whatley was expanding, not contracting, the options available to the contractor to remove the tree, to whom was committed the discretion as to the final decision of the method of removal. At most, this was a suggestion or recommendation, and that is not enough….”

The Sharmas also contended that an exception to the “independent contractor” rule places liability on Whatley, because “[a]n employer is liable for the negligence of a contractor … [w]hen the work is wrongful in itself….” The Sharmas maintained that the felling of the second tree in one piece so close to their yard necessarily required trespass onto their yard and therefore was wrongful in itself. However, the Court said, the competent evidence showed that Whatley never told the contractor he could go onto the Sharmas’ property, and that the contractor believed he could fell the tree without entering their yard. Anyway, a landowner’s hiring someone to cut down a tree from his land is not wrongful in itself, even though the contractor ends up trespassing onto a neighbor’s yard.

– Tom Root

Case of the Day – Wednesday, November 5, 2025

Posted on November 5, 2025 by TLRoot tagged.

DOING IT ON THE CHEAP

Fred Flintstone's boss dictated the hours, methods and conditions of work. Hence, Fred was an employee.

Fred Flintstone’s boss dictated the hours, methods and conditions of work. Hence, Fred was pretty clearly an employee.

Over the next few days, we’re going to talk about independent contractors in the legal sense. With Uber, Lyft and a host of other “gig” companies around, all of which save money by calling their workers “independent contractors,” the topic is timely. The tree business worries (or should worry) a lot about the status of a worker. A lot of bad things can happen when a worker is misclassified as an independent contractor when he or she is an employee. In the next five days, we’ll try to look at a lot of the pitfalls.

You’d think that determining whether a worker is an employee or independent contractor ought to be pretty cut-and-dried. Fred Flintstone at the Bedrock quarry? Well, he used his employer’s equipment, he did what he was told, he punched a time clock… clearly an employee. On the other extreme, we have the A-Team. They came to you, brought their own weapons (and usually a homemade armored vehicle or two), and included a helicopter. They came to do a job and then left (usually just a step ahead of the Army authorities). No question, they were independent contractors. Very independent contractors.

They brought their own guns - clearly independent contractors.

They brought their own gun, transportation, and – in the case of B.A. Baracas – high-class bling. Clearly, the A-Teamers were independent contractors.

The difference between B.A. Baracas and Fred Flintstone is significant and obvious. But that hardly prevents people from calling one the other when the mood strikes them. Some employers think it’s crafty to label their employees as “independent contractors.” It’s irresistible: no tax withholding, no pesky employer matching of social security payments, no unemployment insurance, and no time-and-a-half for overtime. The IRS fights a never-ending battle against this dodge, even providing a convenient form to help you determine whether your worker is a Fred or a B.A.

There are reasons beside taxation for a principal to try to pound a square employee into a round independent contractor hole. Liability and workers’ compensation are two of those. Over the next few days, we’re going to examine the problem of worker classification as it relates to the arboriculture industry. Today, we’re looking in on a real cheapskate and how his tightfistedness nearly killed a teenage girl.

Penny-pincher Sulcer had a tenant named Quimby. No, not the Mayor of Springfield, but instead a long-haul trucker. The landlord ignored his tenant’s pleas to trim a dangerous tree until the tree got in the way of the landlord’s plans. Then he told his tenant — a tree-trimming tyro — to trim it for him, for free, of course.

For some unfathomable reason, Quimby did so. Unfortunately, in so doing, Quimby dropped a limb in a freak accident that struck his high school senior daughter Leslie’s chest, requiring emergency open heart surgery to fix. She survived (even marrying lucky young Mr. Allen during the pendency of the litigation). Sulcer argued that he wasn’t at fault because Quimby was really just an independent contractor, and it was Leslie’s and Quimby’s fault that she stood too close to the tree while Quimby was cutting limbs.

The trial court bought it, but the Court of Appeals — offended, we hope, that the landlord was getting off scot-free — looked at the issue differently. The question, the appellate judges properly held, was what Sulcer owed Leslie as a tenant, not as a volunteer worker for her volunteer-worker-tenant-Dad. And clearly, he had breached his duty to keep young Leslie safe from the perils of an unskilled tree-cutter. Of course, the Court couldn’t help but notice the report of Leslie’s arborist: he said a professional trimming job would have cost ol’ tightwad Sulcer $300 to $500. The Court didn’t say it, but we think it was a bit disgusted that the landlord was willing to jeopardize the life and health of his tenants for $500.00.

No, not this Quimby – Leslie Quimby …

Allen v. Sulcer, 255 S.W.3d 51 (Tenn. Ct.App., 2007). A landlord told his tenant, Mr. Quimby, to prune large limbs from a tree on the rental property with a chainsaw. The tenant’s 18-year-old daughter, Leslie Quimby (now Leslie Allen), was assisting by clearing the limb debris and suffered an aortic valve rupture and other internal injuries that required emergency open-heart surgery, resulting from the impact of a tree limb that had fallen and ricocheted off the ground, striking her in the chest and chin. At the time of the incident, her father was in an ash tree (about 15 to 20 feet off the ground) in front of his rental house, pruning overgrown limbs with a chainsaw. Ms. Allen was standing in front of the house and assisting her father by clearing the limb debris.

The tenant had previously requested more than once that William E. Sulcer, his landlord, who lived 100 yards from the rental house, have the tree pruned. Quimby had voiced his concern that the overgrown limbs hanging over the house and driveway would hurt someone. Even though Sulcer had used professional tree services on his farm in the past, he asked Quimby to perform the work because he was tired of the limbs hanging over the house and driveway. Sulcer did not offer to compensate Quimby for his services. Quimby had no training or expertise in pruning or felling trees or in operating chainsaws, even though he owned one and used it on the limb in question. Sulcer knew Quimby didn’t have experience pruning trees, but he relied on the fact that Quimby had cut limbs on the property before with no problems. Even so, Quimby had never before trimmed large limbs or climbed into a tree to do so. Other than selecting the limbs, Sulcer provided no other instruction, provided no equipment, and was not present at the time of the injury.

Ms. Allen sued Sulcer, alleging he was negligent both as landlord and as the principal of the negligent agent, Quimby. She asserted that Sulcer was negligent in instructing her father to undertake such a task, in failing to supervise his activities, and in failing to maintain the leased premises in a safe condition. She argued that the negligence of her father should be imputed to Mr. Sulcer under the principles of vicarious liability. Sulcer responded that if there was any relationship between Quimby and himself, it was that of employer and independent contractor. He contended he did not create the alleged dangerous condition and that, if it existed, he had no duty to Ms. Allen because the dangerous condition was known (or should have been known) to her. He argued that, as an employer of an independent contractor, he was not liable for the negligent acts of the contractor or for injury to the contractor’s helpers.

The trial court found Quimby to be an independent contractor, and it was a well-settled principle of law that employers of an independent contractor owe no duty to the employees or “helper” of the independent contractor engaged in an inherently dangerous activity. The trial court granted judgment for the defendant, and Ms. Allen appealed.

Held: The summary judgment for Sulcer was reversed. The Court observed that a successful negligence claim requires the plaintiff to establish a duty of care owed by the defendant to the plaintiff; conduct by the defendant falling below the applicable standard of care that amounts to a breach of that duty; an injury or loss; causation in fact; and proximate cause. The Court said that, although the parties agreed that Quimby acted as an independent contractor on behalf of Sulcer, the facts of the case more directly implicated landlord/tenant law. The trial court had overlooked the fact that Ms. Allen was a tenant of Sulcer and failed to account for the possibility of Sulcer’s negligence as a landlord. Thus, the Court held, the dispositive question was whether Ms. Allen encountered a harm whose foreseeability gave rise to a duty of reasonable care on the part of Mr. Sulcer, the landlord, to protect her from the danger of falling limbs.

This is not amateur hour ... as the penny-pinching landlord found out.

This should not be amateur hour … as the penny-pinching landlord found out.

In general, landlords owe a duty of reasonable care to their tenants. When a landlord undertakes to repair or maintain some part of the premises, he owes his tenants a duty to exercise ordinary and reasonable care in seeing that the repairs are properly made. In other cases, landlords were held liable for injuries to tenants when they sent unskilled employees to repair units. Here, Sulcer knew that Quimby was unskilled in tree trimming, that he did not want to perform this work, and was afraid of heights. Sulcer didn’t even offer to pay Quimby. He didn’t inquire into safety precautions or any other methods Quimby might use. Sulcer argued he had no duty to Ms. Allen because the danger of falling limbs was open and obvious, and, because the danger was so open and obvious, it was not foreseeable that Quimby would allow her to collect the limbs or be anywhere near the work site. But Tennessee courts have concluded that an open and obvious danger does not automatically result in a finding of no duty and therefore no landowner liability. As in any negligence action, a risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by a defendant’s conduct outweigh the burden upon the defendant to engage in alternative conduct that would prevent the harm.

Here, limbs falling from a tree are not so obvious a danger as to relieve Sulcer of his duty to hire a competent tree trimmer. Sulcer created an unreasonable risk of harm when he asked an unskilled tenant to conduct work that was dangerous. While the force of a falling limb is predictable, its trajectory while falling and after striking the ground is not. This unpredictability makes the risk of injury from a falling limb more salient when unskilled hands attempt the task. The alternatives available to Sulcer, the Court said, ranged from discussing pruning methods to offering assistance to hiring a professional tree trimmer, all of which, to varying degrees, would have materially lowered or eliminated the probability of such harm with very little burden to the defendant.

The Court found that Sulcer had a duty to select someone who would know how to minimize the risk of trimming such large branches.

– Tom Root

Case of the Day, Tuesday, November 4, 2025

Posted on November 4, 2025 by TLRoot tagged.

FREE GIFT

Some expressions just bug me. “Free gift” is one of them. Of course it’s free. It’s a gift, you knucklehead. What kind of gift would it be if it were not free?

“Free gift” is redundant, a stupid expression, like “past history” and “foreign imports.” And speaking of ‘stupid,’ sometimes you wonder how someone can have so much money and so little else to do that he or she can afford to fritter time and money away on a stupid lawsuit.

Southern California Edison Co., the company responsible for the Dixie Fire in California, has easements all over southern California for transmission and distribution lines. In today’s case, it had a 10-foot wide easement across Steve Severns’ property for maintaining its lines in such a way as not to set all of LA County aflame.

No problem there. But the easement was vague on how SCE was to get to the easement. The language just said “free access,” and for 77 years, the utility and a succession of property owners understood that a route the owner and the company had agreed upon shortly after the easement was granted was the access easement SCE was entitled to use.

But then Steve bought the place. When SCE needed to replace a pole (and, Steve, you can see what happens when California electric utilities don’t maintain their lines), Steve decided he didn’t like the access route SCE had used for 77 previous years. Trying to be accommodating, SCE agreed to a different route, one so vertical it had to pull its trucks to the easement with bulldozers. But then Steve, who believed without any evidence to back him up, that SCE had agreed to restore the route (where the old route had always been left in place), sealed up his property. He told SCE to use a helicopter to get to its easement.

When SCE sued, demanding the “free access” the easement promised, Steve said, “Oh no, that ‘free access’ just means SCE is free to move around inside its 10-foot easement.”

The law has developed many useful laws of statutory and contract construction over the years. One of the principal canons is to give purpose to every part of the contract so that no clause is redundant, surplusage or meaningless.

The court put that canon to good use here. Steve’s interpretation of “free access” to mean SCE had free access only within the described 10-foot easement was just plain stupid. It’s SCE’s easement. Of course it had free access within it.

But that being the case, and the canon of construction instructing us to give meaning to every term, then “free access” must mean something else.

Southern California Edison Co. v. Severns, 39 Cal. App.5th 815 (Ct.App. Cal., 2nd Dist., Sept. 10, 2019). Steve Severns owns a 16-acre parcel of property which is subject to a public utility easement granted to Southern California Edison Company. SCE maintains electrical power lines and supporting structures within a 10-foot-wide strip along the eastern boundary of the property. That strip is described by metes and bounds in the recorded conveyances. Each conveyance also grants SCE “free access” to its electrical facilities.

Steve did not dispute that SCE was entitled to use the 10-foot-wide strip described in the easement for utility purposes, but the parties disagree as to whether SCE has the right to gain access to its easement by traversing other portions of the property. For nearly 80 years, until Steve came along, the property owners allowed SCE crews such access. But not Steve.

Steve bought the property in 2006. In 2008, SCE needed to replace three poles. SCE employees discussed the routes that could be used to reach the poles. Steve objected to SCE’s use of the route historically utilized to access pole 5, because he said that SCE trucks had damaged pipes along the route and that it was too close to the back of his house. The parties agreed that SCE would build an alternative route. The newly created route was steep and, during the work on the poles, the trucks had to be pulled up the steepest stretch with a bulldozer.

Steve complained the new 2008 route was to be temporary. While there was no written agreement, Steve testified that George Perez, an SCE representative, told him that after the pole was replaced SCE would put the property back in the same condition that it was in prior to the pole installation. SCE denied the existence of any such agreement and refused to do so.

Because of the dispute, Steve changed the gate access code/tumbler box and took other steps to prevent SCE’s access. He told SCE to use adjacent properties or helicopters to access its electrical facilities. SCE sued for interference with the easement and declaratory relief. Steve cross-complained, seeking damages for nuisance, trespass and ejectment.

The trial court found, based on the easement language, that SCE had been granted “floating easements” over the property to access its electrical facilities. The floating easements became “fixed” easements when SCE and the property owners agreed on the access routes years before. At that point, SCE became “the owner of an easement of reasonable width” over each agreed-upon access route. The trial court allowed SCE “‘free’ (i.e. unimpeded) access” to those routes.

The trial court further found that SCE and Steve had agreed by acquiescence to abandon the original route to pole 5 and to change the location of that access easement to the 2008 route. The court concluded that while SCE may not construct a new access route or use portions of the property falling outside the 10-foot-wide strip and the delineated access routes, it may perform geotechnical testing incident to repairs and improvements on those routes and trim or remove interfering trees.

Steve appealed.

Held: SCE held a floating easement to cross the property.

A basic rule of interpreting real estate conveyances, including easements, holds that the intent of the parties to the easement is the paramount consideration. The Court noted that it is not the intent of the grantor that governs in such cases. It is the joint intent of the grantor and the grantee. Grants are to be interpreted in like manner with contracts in general. The interpretation of an easement, which does not depend upon conflicting extrinsic evidence, is a question of law.

Recorded conveyances must be interpreted as a whole, with each clause aiding the interpretation in the attempt to give purpose to every part, and the interpretation should, where possible, give effect to every part so that no clause is redundant.

The Court observed that some expressly granted easements – commonly known as floating easements – are not specifically defined as to location by the creating conveyance. These easements are nonetheless fully valid and enforceable by their holders. An easement granted in general terms, nonspecific as to its particular nature, extent or location, is perfectly valid, the Court said, entitling the holder to choose a reasonable location and to use such portion of the servient tenement as may be reasonably necessary for the purposes for which the easement was created.

What’s more, the actual use made by the holder over a period of time fixes the location and the nature and extent of the use. Such an easement necessarily carries with it not only the right but also the duty to maintain and repair the structure or facility for which it was created.

Where an instrument conveys or reserves an unlocated, floating easement, it is presumed that the parties intended to establish a reasonably suitable and convenient route in view of the anticipated needs of both parties. The easement right cannot be exercised over the entire servient tenement, but until the easement is located by agreement of the parties, it is a cloud on the title to all of the property.

In this case, the Court said, SCE’s recorded conveyances do not identify the portion or portions of the property that the company may use for “free access” to its electrical facilities. Steve argued the “free access” language in the conveyances simply means SCE is entitled to move freely within the 10-foot-wide metes-and-bounds easement area. Steve’s interpretation made no sense. “It is undisputed,” the Court observed, “that the recorded conveyances, taken together, grant SCE easements over the 10-foot-wide strip for utility purposes. This grant would be meaningless if SCE could not move freely within that strip to construct, replace, inspect and maintain its electrical power poles, lines and equipment.” Because SCE’s right to move freely within the 10-foot area is not dependent upon the ‘free access’ language, the Court ruled, “the only reasonable interpretation is that the grantors of the easement intended, through that language, to grant SCE some right of access over the property to reach its electrical facilities. Under Severns’ interpretation, the “free access” language would be both redundant and unnecessary.”

Even if the Court were to assume the “free access” language was ambiguous, the extrinsic evidence established the grantors understood the recorded conveyances granted SCE the right to traverse the property to access the 10-foot-wide strip. “It is a cardinal rule of construction that when a contract [or conveyance] is ambiguous or uncertain,” the Court held, “the practical construction placed upon it by the parties before any controversy arises as to its meaning affords one of the most reliable means of determining the intent of the parties.” Here, the evidence confirmed that for decades the grantors freely allowed SCE to drive over the property to access its electrical facilities. Even Steve permitted access until the dispute arose over the restoration of the 2008 route. “This historical usage of the property is consistent with our interpretation of the conveyances,” the Court ruled.

The exception to the historical easement involved the route to pole 5. The route changed in 2008 when Steve asked SCE to construct an alternative route to that pole. Because substantial evidence supported the trial court’s finding that “the original route across the north side of the house has been abandoned and that the road along the east side of the house has been established as the new access route,” the new route because SCE’s new easement route. “We are not persuaded,” the Court said, “by Severns’s argument the 2008 route was meant to be temporary. The court heard conflicting testimony on this issue and ruled in SCE’s favor. Such credibility determinations are the province of the trial court.”

– Tom Root

Case of the Day – Monday, November 3, 2025

Posted on November 3, 2025 by TLRoot tagged.

HURTS SO BAD

In case you missed it the past two days, this is a trackhoe removing a tree.

Today is our last day down on Dick Lavy’s Darke County farm. As you recall, we helped Dick’s faithful employee Sylvester trim the trees along a fencerow that separated one of the Lavy from land belonging to his neighbor, Jim Brewer.

We were fairly impressed to watch Sylvester run a trackhoe down the Lavy side of the fencerow, smacking down branches with the machine’s bucket. It was not pretty, but it got the job done effectively and cheaply.

Jim Brewer, however, wasn’t very happy with the result and sued Dick Lavy Farms. Farmer Lavy argued the Massachusetts Rule let him trim overhanging trees any way he liked, that Sylvester wasn’t negligent or reckless, and that the damage – if there even was damage – didn’t amount to much. The jury thought it was arboricide and socked Farmer Lavy for $148,350.

Last Thursday, we watched the Court of Appeals for Darke County, Ohio, fillet Dick Lavy’s argument that the Massachusetts Rule was a license to butcher. The Court affirmed a landowner’s right to trim encroaching trees and roots to the property line but held that such trimming had to be done in a reasonable manner so as not to injure the adjoining owner’s trees.

On Friday, we saw the Court compare the various means of trimming a fencerow, comparing for ease of use, custom in the area, and cost. It concluded that the trial court was right to find DLF negligent in trimming part of the fencerow and reckless in continuing after a sheriff’s deputy advised Dick Lavy to get legal advice before continuing (advice the farmer ignored).

Today, the Court delves into the $148,350 damage award. Clearly, the Court is troubled that Jim only paid $170,000 for the whole 70 acres, and provided no evidence that the value of the land fell a farthing because of Sylvester’s trimming activities. The Court felt hard-pressed to see Jim get almost $150,000 when no trees other than some saplings were destroyed.

Jim didn’t help his cause by admitting (as he had to) that he only visited the land about eight times a year to hunt and picnic, and the trimming didn’t interfere with those activities. He argued that he planned to build a house there in another 14 years or so, but the Court couldn’t see that the damaged fencerow trees had any impact on those plans.

Usually, the measure of damages for a trespass where trees are cut is the difference in the land’s value after the cutting versus before the cutting. There are times when this measure does not capture the real loss: a family loses a cherished ornamental tree, for example, or the landowner nurtures trees for their ecological value.

That’s what Jim Brewer claimed, too…

In this case, however, it’s hard to see how Jim was hurt at all, not to mention hurt as badly as he claimed to be. Indeed, that’s how the Court of Appeals seems to read it, too. Come with us now on a detailed and thoughtful journey through all of the matters a court (and aggrieved party) should consider in setting the amount of loss. Although the Court sends the damage award back for the trial judge to deal with, it’s quite clear that the appellate panel is disinclined to turn the case into a winning lottery ticket for Jim Brewer.

Brewer v. Dick Lavy Farms, LLC, 2016-Ohio-4577 (Ct.App. Darke Co., June 24, 2016)

(These facts are repeated from the previous two days: If you don’t need the refresher, skip to the holding)

In 2007, James Brewer bought about 70 acres of rural property for $180,000. About 30 acres of the land were tillable, and 40 acres were wooded. The only access to the tillable and wooded property was a 25-foot wide lane of about 3,600 feet in length.

The former owner had allowed his neighbor Dick Lavy Farms to farm the property, and the lane had not been used. Brewer cleared the lane of undergrowth in order to access the rest of the property. The lane ran west to east, and had trees on both sides of the lane, with the trees on the south side forming a fencerow between Brewer’s property and land owned by Dick Lavy Farms. The trees in the fencerow were a woodland mix; none of the trees were ornamental or unique.

In January 2013, Dick Lavy ordered an employee to clear the fencerow between the two properties. At the time, Lavy understood that he could clear brush straight up and down the property line and that such clearing was important for crop production, yield and safety of farm equipment. Using a track hoe, which had an arm that could reach about 15 feet in the air, the employee reached up, grabbed limbs, and pulled on them, trying to break them off cleanly. Although the employee tried to keep the trackhoe on DLF’s side of the property, occasionally a branch would snap off or tear the tree on Brewer’s side. Occasionally, a branch would fall on Brewer’s side, and the employee would reach over to grab the branch Sylvester stated that he never consciously reached over with the bucket to try and break a branch at the tree trunk that was on Brewer’s side of the property.

When Brewer learned that DLF was clearing the fencerow, he went out to look at the operation and called the sheriff. At that point, the track hoe was about halfway down the fencerow, destroying trees. A Darke County sheriff’s deputy told Lavy that a complaint had been made, and expressed his concern that civil or criminal issues could be involved in what he was doing. Lavy said that he had a right to take down any branches that were hanging over his property. In addition, Lavy said he would let Brewer remove the branches if Brewer wanted to do so, but he wanted the branches removed before crop season began in March or April.

Or, if you’re Sylvester, don’t use a chainsaw at all…

The deputy told Brewer that Lavy said that he was allowed to take tree branches from his side and that if Brewer did not like the way he was doing it, Brewer could cut them himself. Brewer told the deputy that he was going to have an expert look at the trees. The deputy filed a report with the prosecutor’s office, but no charges were brought.

Although the deputy suggested that Lavy obtain legal advice before continuing, Lavy continued clearing the fencerow. Knowing that Brewer was upset, Lavy told his employee not to clean up branches that fell on Brewer’s side.

Within days after the damage occurred, Brewer’s wife took photos of the damaged trees. Three months later, Brewer and an arborist counted 326 damaged trees.

Brewer sued Dick Lavy Farms, alleging a violation of O.R.C. § 901.51, reckless trespass, and negligent trespass. Prior to trial, the court held that Brewer was not limited to damages for diminution in value, and the court would apply a standard that allowed recovery of the costs of restoration.

DLF argued that it had a common law privilege to cut off, destroy, mutilate or otherwise eliminate branches from Brewer’s trees that were overhanging DLF land. The Farm also argued that if it was liable, the proper measure of damages should be the diminution of Brewer’s property value; in the alternative, the court’s holding on the issue of damages was against the manifest weight of the evidence. Finally, DLF claimed it had not negligently or recklessly trespassed on Brewer’s property.

The Court found for Brewer, awarding him $148,350 in damages, including treble damages of $133,515.

Dick Lavy Farms appealed.

(If you remember the facts from the previous two days, start here)

Held: It was Halloween for Jim, and he got a trick, not a treat. The $148,350 in damages was set aside because Jim’s property really didn’t diminish in value.

The Court observed that in a previous case, it had held that where the trespasser could not reasonably foresee that trees had a special purpose or value to the landowner, and where the trespasser “cuts trees that are part of a woodland mix and not unique, the ordinary measure of the harm is the difference in the fair market value before and after the cutting.” The trial court, however, had relied on a different standard:

It was all trick and no treat for Jim…

In an action for compensatory damages for cutting, destroying and damaging trees and other growth, and for related damage to the land, when the owner intends to use the property for a residence or for recreation or for both, according to his personal tastes and wishes, the owner is not limited to the diminution in value (difference in value of the whole property before and after the damage) or to the stumpage or other commercial value of the timber. He may recover as damages the costs of reasonable restoration of his property to its preexisting condition or to a condition as close as reasonably feasible, without requiring grossly disproportionate expenditures and with allowance for the natural processes of regeneration within a reasonable period of time.

At trial, Jim’s expert arborist testified that the cost of removing the trees Sylveste3r had damaged would cost $55,000, and the cost of replacing them would be $138,000, plus tax. Jim did not offer any evidence that his 70-acre property’s fair market value had fallen by so much as a penny. DLF’s arboriculture expert testified the life expectancy and service life functionality of the fencerow were not affected by the manner in which the trees were pruned. He valued the fencerow as a woodland edge fence and argued that real estate or fair market value would be the proper way to assess damages. Another DLF expert also testified that the fair market value of Brewer’s property was the same before and after the incident.

The trial court found that removal of the damaged trees was unnecessary, and thus discounted that $55,000 cost. In addition, the court concluded that the $138,000 estimate for tree replacement was excessive, and reduced that amount by 50%. The court also deducted 14% for ash tree disease, which had already caused the death of a number of trees on both sides of the lane. The trial court thus arrived at $59,340 in compensatory damages.

Next, the trial judge decided that DLF had negligently trimmed one-fourth of the property (or about 1,000 feet), and recklessly trimmed the remaining three-fourths of the fencerow. The trial court awarded $14,835 for negligence, and $44,505 for DLF’s recklessness. Pursuant to O.R.C. § 901.51, the court trebled the recklessness amount to $133,515. This brought the total damages to $148,350.

The Court of Appeals noted Ohio’s general rule that “recoverable restoration costs are limited to the difference between the pre-injury and post-injury fair market value of the real property,” The courts have carved out an exception, however, that permits restoration costs to be recovered in excess of the decrease in fair market value when real estate is held for noncommercial use, when the owner has personal reasons for seeking restoration, and when the decrease in fair market value does not adequately compensate the owner for the harm done. This restoration cost exception has been applied, for example, where the damaged trees have been maintained for a specific, identifiable purpose (like recreation, or a sight, sound, or light barrier), when damaged trees are essential to the planned use of the property, or when the damaged trees had a value that can be calculated separate from ornamental trees have been destroyed, or where the trees form part of an ecological system of personal value to the owner.

Even where the restoration exception is applied, the Court said, “the proposed cost [cannot be] grossly disproportionate to the entire value of the injured property.”

The Court said that the damage to Jim Brewer’s trees was “temporary” (meaning, apparently, that the damaged limbs would grow back), and that the Ohio rule is that “damages for temporary injury to property cannot exceed the difference between market value immediately before and after the injury, is limited. In an action based on temporary injury to noncommercial real estate, a plaintiff need not prove diminution in the market value of the property in order to recover the reasonable costs of restoration, but either party may offer evidence of diminution of the market value of the property as a factor bearing on the reasonableness of the cost of restoration.”

The trial court seemed certain that Dick Laye was a deep pocket, and that may have driven its damage award.

The trial court seemed certain that Dick Lavy was a deep pocket, and that may have driven its damage award.

“Viewing the trial court’s award of damages from the perspective of reasonableness,” the Court of Appeals said, “we must conclude that the award for restoration was objectively unreasonable.” First, the application of O.R.C. § 901.51 “almost exclusively involves situations where trees have been completely cut down, making it considerably easier to determine the full extent of the damage to the plaintiffs’ property.” Here, Jim Brewer admitted that other than a few small saplings, he was not claiming that any large trees had been removed from his land. Instead, he contended only “that 326 trees had been damaged in some manner and would ultimately die, even though pictures of the area taken in June 2014 depict a substantial canopy of foliage… Brewer also testified that a number of trees had died, but he did not give any specific number.”

The Court found that Jim Brewer’s trees were not ornamental and were not located at his residence. Instead, they were native trees that were just part of a fencerow. Jim testified he used the property for hunting only about six times a year, and for family get-togethers maybe twice a year. He also admitted the removal of branches had not had any effect on these activities or his ability to rent tillable land to farmers. Jim intended to put a house on the property after his 4-year-old child graduates from high school, but he didn’t claim that DLF’s tree trimming affected his plans to do so.

The Court found it noteworthy that Jim Brewer paid $180,000 for all 70 acres, yet claimed the restoration cost (including removal and replanting of trees) for a very small part of that property was more than $200,000.

Jim did not present any proof that the fair market value of the land had fallen because of the tree trimming. The Court agreed that he was not required to present such evidence, bur said “it would have been helpful, particularly since two defense witnesses indicated that removing vegetation from the fence row did not impact the fair market value of the land.” Additionally, the Court found that much of the trial judge’s calculations “were based on speculation or were incorrect. For example, the court concluded that one-fourth of the fence row was trimmed negligently, but the plaintiff’s own evidence showed that more like 1,800 feet had been trimmed when Jim Brewer first complained. “The trial court could have chosen to disregard [the DLF employee’s] testimony,” the Court said, “but there is no logical reason to disregard the plaintiffs’ own admission about how far the fence row had been cleared.”

The Court of Appeals was not inclined to see Jim Brewer get a winning lottery ticket…

The trial court also gave no particular reason for its 50% discount on damages. What’s more, the Court of Appeals complained, “The trees on the fence row were a woodland mix of native trees, not ornamental trees. A number of the trees were undesirable, and there was no evidence of special value. In addition, the fence row had been unmaintained for 10 or 29 years. Even though these facts no longer require damages to be limited to diminution in value, they are still points that should be considered in deciding whether an award is reasonable.”

The Court of Appeals vacated the damages, and directed the trial court on remand to consider the reasonable restoration costs, taking into consideration the decrease in the fair market value of the land; the fact that the trees were a common woodland mix, not ornamental trees or trees that Jim had planted for a particular purpose; the fact that the fence row was not maintained for many years, and had undesirable and dead trees on each side of the row; the extent to which the trees have regenerated since the date of the 2013 trimming; the lack of impact on Jim’s intended home site; and the fact that Jim’s use of his property is “sporadic and is not impacted by any injury to the trees.”

The detailed list of evidence the trial court is to consider pretty much tells the trial judge how the Court of Appeals expects this to turn out.

– Tom Root

Case of the Day – Friday, October 31, 2025

Posted on October 31, 2025 by TLRoot tagged.

RUNNING AMOK WITH A TRACKHOE

Friday, we began three days down on the farm with Dick Lavy, and his faithful employee, whom we will simply refer to as Sylvester. Now that you’re sitting in your big easy chair, scarfing down Halloween candy you should be saving for those cute little urchins in the neighborhood, immerse yourself in the story of Farmer Lavy and his faithful sidekick Sylvester.

As you recall, Farmer Lavy told Sylvester to trim the trees along a fencerow that separated one of the Lavy farms (and the opinion suggests Dick Lavy had a lot of farms, e-i-e-i-o) from his neighbor, Jim Brewer.

Sylvester did as he was told but with a trackhoe instead of a chainsaw. He crawled down the Lavy side of the fencerow, smacking down branches with the trackhoe’s bucket. It was not a pretty job, but it was effective and cheap.

When Jim Brewer sued, Farmer Lavy argued the Massachusetts Rule let him trim overhanging trees any way he liked, Sylvester wasn’t negligent or reckless, and the damage – if there even was damage – didn’t amount to much. The jury mauled Farmer Lavy as badly as his man Sylvester mauled Jim Brewer’s trees, returning a verdict for Jim Brewer in the amount of $148,350.

Friday, we watched the Court of Appeals for Darke County, Ohio, fillet Dick Lavy’s argument that the Massachusetts Rule was a license to butcher. The Court affirmed a landowner’s right to trim encroaching trees and roots to the property line, but held that such trimming had to be done in a reasonable manner so as not to injure the adjoining owner’s trees. Today, the Court looks at whether Sylvester acted reasonably in chewing up the fencerow.

What’s interesting about the Court’s analysis is its reliance on expert testimony as to the prevailing custom for fencerow trimming in Darke County, the higher cost of using a chainsaw and bucket truck relative to trackhoes, and the dangers of alternative methods of trimming. As for recklessness, the Court was satisfied to learn that a sheriff’s deputy told Farmer Lavy that his neighbor was unhappy, but Lavy bullheadedly went forward without talking to the neighbor or at least checking with his lawyer to be sure what he was doing was legal. The lesson there is that when you’re on notice but choose to ignore it, you may be judged harshly.

After today’s installment, you’d be reasonable to think that Jim Brewer will probably collect that $148,350 in damages. Tomorrow we’ll finish Brewer v. Dick Lavy Farms, and you may be surprised.

Brewer v. Dick Lavy Farms, LLC, 2016-Ohio-4577 (Ct.App. Darke Co., June 24, 2016)

(These facts are repeated from yesterday: If you don’t need the refresher, skip to the holding)

The former owner had allowed his neighbor, Dick Lavy Farms, to farm the property, and the lane had not been used. Brewer cleared the lane of undergrowth in order to access the rest of the property. The lane ran west to east, and had trees on both sides of the lane, with the trees on the south side forming a fencerow between Brewer’s property and land owned by Dick Lavy Farms. The trees in the fencerow were a woodland mix; none of the trees was ornamental or unique.

A trackhoe – a blunt instrument for tree trimming.

In January 2013, Dick Lavy ordered an employee to clear the fencerow between the two properties. At the time, Lavy understood that he could clear brush straight up and down the property line, and that such clearing was important for crop production, yield and safety of farm equipment. Using a trackhoe, which had an arm that could reach about 15 feet in the air, the employee reached up, grabbed limbs, and pulled on them, trying to break them off cleanly. Although the employee tried to keep the trackhoe on DLF’s side of the property, occasionally a branch would snap off or tear the tree on Brewer’s side. Occasionally, a branch would fall on Brewer’s side, and the employee would reach over to grab the branch. Sylvester stated that he never consciously reached over with the bucket to try and break a branch at the tree trunk that was on Brewer’s side of the property.

When Brewer learned that DLF was clearing the fencerow, he went out to look at the operation and called the sheriff. At that point, the track hoe was about halfway down the fencerow, destroying trees. A Darke County Sheriff’s Deputy told Lavy that a complaint had been made, and expressed his concern that civil or criminal issues could be involved in what he was doing. Lavy said that he had the right to take down any branches that were hanging over his property. In addition, Lavy said he would let Brewer remove the branches if Brewer wanted to do so, but he wanted the branches removed before crop season began in March or April.

Within days after the damage occurred, Brewer’s wife took photos of the damaged trees. Three months later, Brewer and an arborist counted 326 damaged trees.

Brewer sued Dick Lavy Farms, alleging a violation of R.C. 901.51, reckless trespass, and negligent trespass. Prior to trial, the court held that Brewer was not limited to damages for diminution in value, and the court would apply a standard that allowed recovery of the costs of restoration.

The Court found for Brewer, awarding him $148,350 in damages, including treble damages of $133,515. Dick Lavy Farms appealed.

(If you remember the facts from yesterday, start here)

Held: Friday, we studied the Court’s holding that the exercise of the Massachusetts Rule right to trim vegetation that encroaches on an owner’s property is constrained by the requirement that the trimming be done with reasonable care so as not to damage the neighbor’s property.

Today, the Court considered whether DLF had exercised such care, and unsurprisingly found that it did not.

The hierarchy of mens rea.

In his complaint. Brewer claimed a violation of O.R.C. § 901.51, negligent trespass, and reckless trespass. A common-law trespass to real property occurs when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another, causing damage, even insignificant damage. The act of nonconsensual entry may be intentional or negligent.

The Court admitted the case was unusual because the DLF worker did not actually trespass on Brewer’s land other than when clearing off brush that had fallen, or, on one occasion, when he lost control of the trackhoe bucket. In fact, the worker said he never consciously reached over to snap off a branch at the tree trunk that was on Brewer’s property. The action of clearing debris, the Court said, would not have harmed Brewer, but would actually have benefitted him.

The Court said most instances of trespass occur when people enter onto the land of another, cut down, and remove trees. Still, trespasses can result from people setting in motion actions that intrude on another’s land and cause damage. Thus, the liability could still exist even if DLF workers never actually stepped onto Brewer’s property.

The trial court had previously concluded that DLF was negligent by failing to cut or break the trees above its own land and that DLF breached a duty to ensure that no damage occurred on Brewer’s side of the property line. The trial court discussed two methods of trimming trees, using a track hoe to tear limbs along fences and using a bucket and chainsaw, noting that “the more common but dangerous method of lifting a person” with the scoop bucket on a tractor more clearly respects the property line and causes less damage.

To establish actionable negligence, the party seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting from the breach. To determine the extent of the duty, the trial court heard from expert witnesses about common practices in Darke County, Ohio, for cutting limbs. Brewer’s expert naturally said that the common practice is to use a chainsaw, hand saw, or pole pruner, but never a trackhoe (which would cause more damage to a tree). The expert estimated the cost of his recommended type of pruning to be about $16,000 for the length of the fence row.

The Court of Appeals concluded that few farmers could afford such an expense for pruning, a finding echoed by a number of farmers DLF called to testify. DLF’s witnesses said the custom in Darke County was to clear fences using a trackhoe or backhoe. DLF’s expert stated that he had farmed in the county for 45 years and that the common practice for clearing fencerows over the last 15 years had been to use backhoes or trackhoes to remove limbs from overhanging trees. He also named commercial services that used this method. He said that using a bucket truck and a chainsaw is not common because of cost, as well as the danger it presents.

Arcanum, a small town in Darke County, is the former home of the annual Tour De Donut bicycle race (since moved to larger digs in nearby Troy). In the event, over 2,000 participants race their bicycles from stop to stop, where they see who can eat the most donuts the quickest. You know, Darke County may have its own standard for “recklessness.”

Another Darke County farmer in Darke County testified that the farmers he knows stand in a loader bucket and trim trees using a chainsaw, but he admitted the method was dangerous. He admitted he knew no one who used a trackhoe for trimming.

The Court of Appeals said that in light of the record, the trial court’s conclusion that DLF was negligent was not erroneous. “Farmers may face difficult choices if the available methods are either too expensive, or risk damage to surrounding property, or risk the farmer’s safety. However, the issue in this case is simply whether the method in question caused unnecessary harm to the adjoining property. In view of the evidence, we cannot conclude that the trial court erred in the standard it applied, nor can we conclude that the court’s finding of negligence was against the manifest weight of the evidence.“

Likewise, the Court denied DLF’s claim that the trial judge’s finding that it was reckless was against the weight of the evidence. Dick Lavy admitted that sheriff deputies told him that Brewer was unhappy with the trimming and asked him to stop clearing the trees. But Levy neither told his employee to stop clearing the line in order to give Brewer a chance to do so nor did he contact Brewer to discuss the matter. There was no need for speed: Lavy told Deputy Nichols that he wanted to clear the fence row before spring planting, but that was two or three months away.

The appellate court held that a person acts recklessly when – with heedless indifference to the consequences – he or she disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he or she disregards a substantial and unjustifiable risk that such circumstances are likely to exist.

The Court of Appeals noted that other defendants had been found reckless where their actions, like Dick Lavy’s, continued after they learned of a dispute about the activity. The same, the Court said, was true here.

– Tom Root

Case of the Day – Thursday, October 30, 2025

Posted on October 30, 2025 by TLRoot tagged.

DOWN ON THE FARM

Donald Trump carried Ohio in the 2016 presidential election by 8 percentage points. He won by 8.1 percentage points four years later, a result that he did not call fraudulent. In 2024, he carried the Buckeye State by 11.2%. Some of those folks may be wishing they had some of those votes back.

We’ll leave politics to the trained professionals, but we think it’s high time Ohio takes you all to school, even if it’s only about tree law. We have some thinking people here (we think). Just to prove our arboreal mettle, we’re going to spend the next three days talking about a single Ohio case, a lengthy decision that’s a veritable final exam in tree law.

The Ohio appellate court decision answers some tough questions. Such as, if the Massachusetts Rule lets me trim encroaching tree branches and roots up to my property line, what duty do I have to the trimmee? Or, how do I maximize my damages (if I’m the plaintiff) or minimize them (if I’m the defendant)? Or, what method do I have to use to trim back to the property line?

Serious questions, indeed. So we’ll leave the tariffs and the questionable indictments and shutdowns and weird midnight Truth Social rants to others, and travel to sunny Darke County, where mega (not MAGA) farmer Dick Levy has just had one of his farmhands trim a property-line fencerow by ripping down offending branches with a trackhoe. He claims the Massachusetts Rule lets him use anything short of tactical nuclear weapons to vindicate his tree-trimming rights. The Court is more cautious…

Tomorrow, we’ll look at whether farmer Lavy’s trespass onto his neighbor’s land was negligent or reckless. Thursday, we get to the question of damages.

Brewer v. Dick Lavy Farms, LLC, 2016-Ohio-4577 (Ct.App. Darke Co., June 24, 2016). In 2007, James Brewer bought about 70 acres of rural property for $180,000. About 30 acres of the land were tillable, and 40 acres were wooded. The only access to the tillable and wooded property was a 25-foot wide lane of about 3,600 feet in length.

A trackhoe removing a tree… rather a blunt instrument.

In January 2013, Dick Lavy ordered an employee to clear the fencerow between the two properties. At the time, Lavy understood that he could clear brush straight up and down the property line and that such clearing was important for crop production, yield and safety for farm equipment. Using a trackhoe with an arm that could reach about 15 feet into the air, the employee reached up, grabbed limbs, and pulled them, trying to break them off cleanly. Although the employee tried to keep the trackhoe on DLF’s side of the property, occasionally a branch would snap off or tear the tree on Brewer’s side. Occasionally, a branch would fall on Brewer’s side, and the employee would reach over to grab the branch, but he never consciously reached over with the bucket to try and break a branch at the tree trunk on Brewer’s side of the property.

When Brewer learned that DLF was clearing the fencerow, he went out to look at the operation and called the sheriff. At that point, the track hoe was about halfway down the fencerow, destroying trees. A Darke County Sheriff’s Deputy told Lavy that a complaint had been made, and expressed his concern that civil or criminal issues could be involved in what he was doing. Lavy said that he had a right to take down any branches that were hanging over his property. In addition, Lavy said he would let Brewer remove the branches if Brewer wanted to do so, but he wanted the branches removed before crop season began in March or April.

The deputy told Brewer that Lavy claimed the right to take tree branches from his side and that if Brewer did not like the way he was doing it, Brewer could cut them himself. Brewer told the deputy that he was going to have an expert look at the trees. The deputy filed a report with the prosecutor’s office, but no charges were brought.

Within days after the damage occurred, Brewer’s wife took photos of the damaged trees. Three months later, Brewer and an arborist counted 326 damaged trees.

Brewer sued Dick Lavy Farms, alleging (1) a violation of O.R.C. § 901.51; (2) reckless trespass; and (3) and negligent trespass. Prior to trial, the court held that Brewer was not limited to damages for diminution in value, and the court would apply a standard that allowed recovery of the costs of restoration.

A chainsaw would have given a cleaner cut, but they are dangerous.

The Court found for Brewer, awarding him $148,350 in damages, including treble damages of $133,515.

Dick Lavy Farms appealed.

Held: The Massachusetts Rule is not a license to maim and maul.

DLF argued it had a common law privilege to sever or eliminate Brewer’s overhanging branches in any manner that it desired, and that the trial court nullified the privilege by holding that DLF could not cause breakage that impacts the tree on the other side of the property line. DLF argued this holding “emasculates the common law privilege and creates a conflict between R.C. 901.51 and a property owner’s constitutional rights.”

Section 901.51 of the Ohio Revised Code provides that:

No person, without privilege to do so, shall recklessly cut down, destroy, girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop standing or growing on the land of another or upon public land. In addition to the penalty provided in section 901.99 of the Revised Code, whoever violates this section is liable in treble damages for the injury caused.

The Court agreed that “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.” However, the Court said, “Even in situations involving common law privilege, a landowner should not act in a manner as to cause damage to the property of an adjoining landowner. Thus, while a privilege exists, it is not absolute.”

The appellate panel said that “it is a well-recognized principle of common law that a landowner has the right to protect his own land from threatened injury, even though, in doing so, he produces a condition that injures adjoining land, provided he acts with reasonable care. Ohio has recognized the right of a property owner to use self-help in removing encroachments on his property. Other jurisdictions also recognize the right of an owner to remove any encroachment on his property which deprives him of the complete enjoyment of his land.”

The critical phrase, the Court held, is “reasonable care.” DLF’s privilege to remove encroachments was limited by the requirement that it use reasonable care not to injure neighboring property. By imposing a standard of recklessness, which requires a higher degree of fault, the Court said, O.R.C. § 901.51 does not interfere with the common law privilege. Owners have an absolute right to destroy any vegetation on their own side of the property. Liability attaches only where the owners’ actions create harm on the other side of the property line.

Farmer Lavy argued that the Massachusetts Rule meant he didn’t have to think.

Thus, an owner must use reasonable care when exercising his or her rights under the Massachusetts Rule.

We should note that two judges concurred in the judgment, arguing that there is no duty of reasonable care required by a property owner when protecting his or her own property from encroaching vegetation. The dissenters said the owner “may cut, mutilate, decimate, pulverize or obliterate branches or roots which infringe upon her property from a neighbor’s trees or plants. Self-help is permitted to remove trees or plants. What she cannot do is intrude into the neighbor’s property in doing so. That is why liability is imposed here. Tearing off branches on the DLF property which extended into the Brewer property and which severed the branches at the trunk, or some other point on the Brewer property, constituted an intrusion and trespass across the property line into the Brewer property, regardless of any degree of care or lack thereof.”

The dissenters drew “a distinction between removal of encroaching vegetation, where self-help is universally accepted, and removal of structures building or fences, where self-help is often unacceptable.” Curiously, they noted that it “seems likely that a landowner could not chemically treat or poison the roots or limbs that encroach upon her property if that method of destruction will migrate to that portion of the vegetation on the neighbor’s yard and destroy the tree or shrub altogether, but that is an issue for another day.”

– Tom Root

Case of the Day – Wednesday, October 29, 2025

Posted on October 29, 2025 by TLRoot tagged.

SWEET BAMBOO

Bamboo – essentially kudzu with cellulose stalks. A report on pandas I saw on some forgettable channel last week reported, among other things, that the anthropomorphic beasts have been eating bamboo for 6 million years.

If that’s so, they certainly have done a lousy job of it.

Bamboo grows at two rates, fast and faster. It invades like the Germans into Russia, a plant so aggressive that landscapers recommend installing a concrete tank in the ground to ensure that its roots don’t go deep and spread into the neighbor’s land. It grows dense and tall, and takes no prisoners.

Florida Power & Light, the defendant in today’s case, considered bamboo a “critical removal” species. When found under FLP lines, bamboo was not to be trimmed. It was to be removed, killed dead, dead, dead.

That didn’t happen in today’s case, and the invasive plant was so high and thick that a teenager climbed it and died when the bamboo bent over and contacted a live power line.

That’s where the personal injury lawyer came in. PI attorneys are their own type of invasive species. The complaints they file spread far and wide, like bamboo, and can be as aggressive as Bambusoideae of the grass family Poaceae itself.

A personal injury case, if successful, results in an award of damages to the plaintiff intended to make him or her whole. You would think that would be straightforward, but the amount is computed by juries, and juries can be fickle. A crying mother who lost her son versus a faceless, soulless electric utility owned by a faceless, soulless holding company sporting a made-up name, Nextera Energy, Inc. That holding company, stock symbol NEE, had net income of $6.9 billion (with a “b”) last year, on total revenues of $24.7 billion.

That’s a lot of money, and it spawns plaintiffs’ attorneys’ arguments I’ve heard many times before: Corporate greed killed the boy, and don’t you think this poor woman deserves at least one-half of one percent of FP&L’s obscene profits for her suffering? You, Mr. and Ms. Juror, need to send the defendant a message, and put the other corporate giants like it on notice that they cannot treat people this way.

In today’s case, the jury thought the loss of plaintiff Tricia Dominguez’s son was worth $12.5 million. It seems like a lot to me, but it is not my son who died. The tougher part is that the jury awarded Tricia another $15 million in punitive damages, damages awarded to punish FPL for its greedy and reckless decision to not cut the bamboo.

Punitive damages never made a lot of sense to me. Why should the plaintiff get them? If the object is to be like a fine in a criminal case, shouldn’t the punitive damages be paid to the state? And too often, the punitive damages seem to be as much a penalty imposed on a company for its size or profits as they are for truly abhorrent conduct.

Tricia’s PI attorney used a Florida doctrine known as direct liability, in which a corporation is punished for gross negligence if “there [is] willful and malicious action on the part of a managing agent of the corporation.” It worked, and FPL was socked with $15 million in punitives, despite the fact that the guy who was pilloried for gross negligence was a minor supervisor in a regional office, and despite the fact that there was no evidence he even knew about the bamboo stand where the accident occurred.

However, a court of appeals threw a healthy dose of reality on the case and undid the punitive damages.

Florida Power & Light Co. v. Dominguez, 295 So.3d 1202 (2019). In December 2011, 15-year-old Justin Dominguez was climbing a tall stalk of bamboo in his neighbor’s backyard. The stalk bent into a power line, resulting in Justin’s electrocution and death. The boy’s mother, Tricia Dominguez, filed a wrongful death action against Florida Power & Light, arguing that FPL was negligent because it ignored its own maintenance and safety standards when it failed to remove the bamboo, a fast-growing and uncontrollable plant, from the area near the line. She further alleged that FPL had been warned about the bamboo at the accident site but still failed to remove it. As a result of this negligence, she argued that FPL created a dangerous safety hazard that claimed her son’s life.

Tricia asked for punitive damages as well as compensation for her loss, complaining that the accident scene was so overgrown with trees that the power lines were not easily visible around the bamboo. She showed that FPL’s vegetation maintenance procedures explicitly recognized the risk of electrocution posed by foliage encroaching upon powerlines, including the danger to children who climb trees.

Bamboo in particular is a problem because of its aggressive growth rate. Thus, FPL designated it as a “critical removal” species that should be removed outright instead of merely trimmed in the vicinity of power lines. Tricia argued that FPL had been informed about the bamboo at the accident site by one of its contractors, who recommended it be removed. Despite the recommendation, Tricia alleged, FPL violated industry standards and its own vegetation maintenance policy by failing to do so. Tricia asserted that this failure warranted punitive damages because it was the direct result of a corporate policy that prioritized cutting costs and corporate greed over the lives and safety of the general public.

Tricia argued that due to direct liability, FPL – through the behavior of Barry Grubb, the head of vegetation management for the region in which the accident occurred and the person identified by FPL as being its vegetation management program expert – was financially responsible for the bamboo hazard. Tricia ran with that, arguing that Barry was willfully ignorant about the circumstances and hazards surrounding Justin’s death. When answering interrogatories, he claimed that no trimming or other maintenance was necessary at the accident site even though he had never visited the scene himself. At the time of his deposition years later, Grubb had still not visited the site and had no opinion on the adequacy of the maintenance there. He also testified that he was not familiar with the language in FPL’s vegetation maintenance rules about the danger of electrocution from foliage near power lines. In sum, Tricia argued, regional vegetation manager Grubb had taken a see-nothing, know-nothing approach. The jury agreed with this assessment and awarded her $15 million in punitive damages.

FPL appealed.

Held: The Court of Appeals upheld the wrongful death judgment and the $12.5 million in compensatory damages. It reversed, however, on the punitive damages.

Direct liability is one of two theories recognized in Florida through which a corporation may be liable for punitive damages. Under the direct theory, liability for gross negligence is established if the corporation itself engaged in conduct that was “so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct,” and its conduct contributed to the loss of the injured party. Because a corporation cannot act on its own, “there must be a showing of willful and malicious action on the part of a managing agent of the corporation” to establish direct punitive liability.

A “managing agent” is more than just a manager or midlevel employee. Instead, the Court held, a managing agent is an individual like a “president [or] primary owner” who holds a position with the corporation, which might result in his acts being deemed the acts of the corporation.

Here, Tricia sought punitive damages under the direct liability theory through the alleged gross negligence of a regional supervisor in FPL’s vegetation management program. At trial, supervisor Grubb was identified as the FPL employee who knew the most about this program, but he was only in charge of the program for a limited geographical area. He also testified that he has a manager himself, and thus he alone does not make policy decisions relating to the program. While his position certainly comes with significant managerial power, Grubb does not qualify as a managing agent of FPL. Overseeing only a portion of FPL’s arborist program, which is itself ancillary to FPL’s primary function of providing electric power, Grubb is at best a midlevel employee more akin to a bank vice president or hotel manager than to a corporate officer or official who could represent FPL as a whole. Because Grubb is not a managing agent for purposes of direct punitive liability, the Court said, the award of punitive damages in this case had to be reversed.

Even if Grubb were a managing agent, punitive damages are only warranted if there is evidence he was negligent “equivalent to the conduct involved in criminal manslaughter.” To be punished by punitive damages, the Court observed, the conduct must be “so reckless or wanting in care that it constitutes a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

But in this case, trial testimony established that Grubb was not directly involved with the accident and did not know about the details of Justin’s death until years after the fact. Grubb also seemed unaware of specific FPL safety standards cited by Tricia, despite being identified as the person most knowledgeable about FPL’s vegetation program. Whatever negligence a jury may infer from this evidence, the appellate panel ruled, “It certainly does not rise to the level of ‘reckless disregard of human life’ or an ‘entire want of care, which would raise the presumption of a conscious indifference to consequences’.”

– Tom Root