Case of the Day – Monday, September 22, 2025

Posted on September 22, 2025 by TLRoot tagged.

“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

Case of the Day – Friday, September 19, 2025

Posted on September 19, 2025 by TLRoot tagged.

FINDERS KEEPERS

I ran into this hulking young electrician the other day who greeted warmly by name (called me “Mr. Root,” something I’ve never gotten used to). I confessed that I had no idea who he was.

He reminded me that he had been my across-the-street neighbor 15 years ago. He was a great kid. I fixed his bike countless times, played catch with him, and often had to explain to him the nature of whatever arcane project I was engrossed with in my garage. I was very sorry when his family moved.

Seeing Christian made me recall one day when Chris had found a Superball (remember those?) in the leaf-covered grass near his house. He was busy tormenting his sister, 4-year-old Lexi, with it – something at which 8-year-old boys are especially adept – when he wondered whether he could keep his find or he’d have to “give it back.”

I asked, “Give it back to whom?”

He shrugged, having no idea who the owner had once been. His situation reminded me of a sad story from a few years ago about a contractor who discovered a wad of money in the walls of a house he was renovating for a new owner. The contractor and the owner and — finally — the descendants of a prior owner, all became embroiled in litigation, and in the end, the lawyers got virtually all of it. Shades of Jarndyce v. Jarndyce!

Lucky for Chris, I knew what Ohio law had to say about “treasure troves,” those little bundles of cash, jewelry, art, or old Hostess products that people occasionally stumble over. It turns out that the answer depends on whether the property is lost, abandoned, stolen, or mislaid. If it’s lost or abandoned, it turns out, Chris’s young sister was right in the advice she gave him: finders keepers.

In today’s case, a very fortunate cop found thousands of gold and silver coins scattered on a city street at 4 a.m. He picked them up and then, being a dutiful cop, turned them in. The owner never stepped forward — and you can bet there’s a story in that — so after about a year, the police officer sued for ownership.

The City opposed him, arguing that the coins were located on its street and the policeman was on the City’s time clock when he found them. None of that mattered, the Court said. All that counted was that the lost or abandoned property was found by Officer Baker, who thus had ownership rights superior to anyone other than the rightful owner.

Our advice to Chris, then, was that the Superball was probably lost property, because who’d willingly abandon such a cool ball? It was his to enjoy unless the true owner stepped forward.

Sadly, our legal efforts were for naught. Shortly after our sage advice to him, Chris lost the Superball on an especially high bounce into a nearby soybean field. Losers weepers.

Baker v. City of West Carrollton, Case No. 9904 (Ct.App. Montgomery Co., August 7, 1986) (unpublished), 1986 WL 8615. Police officer Charles Baker found a large number of gold and silver coins scattered on a West Carrollton public street. After reporting the find, he and city employees picked up 6,871 gold and silver coins and placed them in the police property room. When no one stepped forward to claim them, Baker sued to establish his right to the money. The City counterclaimed, arguing that the money was found on its street, and Baker was its employee, so the money belonged to it. The trial court agreed and awarded the money to the City. Baker appealed.

Held: The money belonged to Baker, not the City. The money was considered to be “lost” or “abandoned” property. Under Ohio common law, a finder who takes possession of “abandoned property” acquires absolute title. A finder of a lost article, although he does not by such finding acquire an absolute property or ownership, has a prior claim thereto as against everyone except the actual owner. The rule is practically absolute and is not affected by special circumstances of the character of the thing found, the place of finding, or the relation of the finder to the third person, even where the finder is the employee of the owner of the premises.

At common law, a finder who takes possession of lost property has a duty to protect the property; to seek the true owner, and to return the property to the true owner on demand. The state had no right to “found property” as against the finder. Although Ohio law governs the disposition of lost or abandoned property by police departments, the law requires the property to be turned over to persons with a right of possession, and Ohio courts have held that a finder of lost property that is unclaimed by the true owner is a person “entitled to possession of property” under that law. Officer Baker was such a person.

West Carrollton argued that because Baker is a police officer, he should not receive a reward for performing his duty. The Court agreed that rewards for police officers’ performance of their duties aren’t appropriate, but it said that the City’s award analogy was strained. It held that Baker’s primary duty was to the true owner of the coins, and he got no reward for that.

The Ohio Supreme Court later upheld the decision. Now, if those Justices can just help Chris search the soybean field.

– Tom Root

Case of the Day – Thursday, September 18, 2025

Posted on September 18, 2025 by TLRoot tagged.

INCORPOREAL HEREDITAMENTS

The man on the right is a corporal ... and a combat vet with a Purple Heart. The man on the right, a major general, is not a corporal. The guy in the middle is just a politician. But none of them is an incorporeal hereditament.

The man on the left is a corporal. The man on the right is a major general, not a corporal, but he may have once been one. The guy in the middle is just a politician and probably was never a corporal. But none of them is now or ever has been an incorporeal.

Today, we’re considering incorporeal hereditaments. Lawyers like cool terms like these, because they can charge more when their clients can’t understand what they’re saying. Here at treeandneighborlaw.com, we demystify the law for you. That’s us – the homeowner’s friend.

Before we pull a muscle patting ourselves on the back, let’s get to today’s topic. A hereditament is nothing more than a right that can inherited. A corporeal one is that may be seen and handled, like a piece of real estate. Back in the day, conveyance of land was done by livery of seisin, wherein the propert seller would actually hand the buyer a twig or clump of dirt, a ritual conveyance of the real estate being sold. An incorporeal hereditament, on the other hand, is something that couldn’t be symbolically passed off, something intangible like an easement.

Sound boring? Some North Carolinians found out that boring or not, it’s important. A couple of landowners had, over the past 11 years or so, planted trees, built fences and otherwise taken actions inside a 30-foot driveway easement that encroached on the use of the passage by its owners. The easement owner, stymied in his use of the drive, sued. The defendants argued “too little, too late:” the plaintiffs were way beyond the 6-year statute of limitations for suing on incorporeal hereditaments. The plaintiffs said, “Poppycock!” (a term that may be mildly vulgar in the UK but in the legal world means “fiddlesticks!”). The statute didn’t start running until the invasion of the easement had passed the 20-year period for adverse possession of land or prescriptive easements. In other words, the plaintiff argued, he was allowed 26 years from the time the trees were planted and fences were built to bring a lawsuit.

The Court of Appeals disagreed, siding with the defendants. This wasn’t a case of someone trespassing, taking land by adverse possession or a right by prescriptive easement. This was someone trying to undo an express easement. The lawsuit simply related to an incorporeal hereditament, and it was subject to the 6-year statute.

The incorporeal hereditament not taken … as Robert Frost might have said.

The result is curious. It means that an owner of an easement, a right that is often as valuable as the property itself, can lose that right by interference by the servient estate owner in a relatively brief period of time. To use a legal term, “you snooze, you lose.”

Pottle v. Link, 654 S.E.2d 64 (N.C.App., 2007). The Pottles owned Tract 6 on Cedar Island, and Snug Harbor South, LLC, owned Tract 4. Both of these owners held 30-foot wide easements allowing ingress to and egress from the public road to Tracts 6 and 4 and other lots. Mr. Link owned Tract 3 and Mr. Willets owned Tract 5, adjacent lots that were the servient estates over which the easements ran. About 11 years before the lawsuit was filed, Link planted several oak, cypress, holly, and cedar trees on Tract 3, joined several years later by two more oak trees to replace two that had been destroyed by hurricanes.

He maintained the trees by installing an irrigation drip line and planting other vegetation on the tract In the summer of 2004, Willets installed a post and rope fence on Tract 5, and in 2005, Link built a fence. The Pottles and the LLC sued, arguing that Link’s trees impeded traffic on the easement and that Willets’ post and rope fence encroached on the easement as well. Plaintiffs filed a motion for summary judgment, arguing that Link and Willets had refused to clear the easements to provide access to property that had no other routes of access. Link and Willets moved for summary judgment, too, arguing that the 6-year statute of limitations for injuries to incorporeal hereditaments had expired and that the plaintiffs’ actions constituted an abandonment of the easement. The trial court granted summary judgment to the plaintiffs. The defendants appealed.

Here’s a legal expression anyone can understand …

Held: Summary judgment for the plaintiffs was reversed, and the defendants won on many of the issues. The Court of Appeals noted that the parties agreed that all encroachments, except the fences installed in 2004 and 2005, were planted or installed approximately nine to eleven years before the lawsuit. The only question, the Court said, was which statute of limitations applied. An affirmative easement is a right to make some use of land owned by another without taking a part thereof, while a negative easement prohibits the owner of a servient estate from doing something otherwise lawful upon his estate because it will affect the dominant estate. Easements are incorporeal hereditaments, defined as “[a]n intangible right in land, such as an easement.” N.C. Gen.Stat. §1-50(3) requires that an action for injury to any incorporeal hereditament be brought within six years. The plaintiffs argued that the injury in this case was similar to an adverse possession, having a limitation period of twenty years, but the Court disagreed, holding that the cases relied on by the plaintiffs related to a defendant’s continuous trespass onto the plaintiffs’ property, not on plaintiffs’ incorporeal hereditament.

Because an injury to an incorporeal hereditament was at issue in this case, rather than a continuous trespass or a prescriptive easement to property held in fee, the Court held that N.C. Gen.Stat. §1-50(3) applied, and the plaintiffs’ case thus was barred because the six-year statute of limitations had been exceeded. All but two encroachments onto the plaintiffs’ easement began 9 to 11 years before the lawsuit. The defendants were therefore entitled to partial summary judgment as a matter of law. The fences had not been in place for more than six years, but because the defendants argued that the fences did not encroach on the easement, an issue of fact existed, and summary judgment in favor of the plaintiffs had to be reversed.

The case was sent back for trial on the question of whether the fences encroached on the easement.

– Tom Root

Case of the Day – Wednesday, September 17, 2025

Posted on September 17, 2025 by TLRoot tagged.

WHO YOU GONNA CALL?

So who you gonna call?

It’s not easy to defeat a utility company holding an easement for transmission lines, despite the fact that the power outage that spawned the Energy Policy Act of 2005 and turbocharged the North American Electric Reliability Corporation happened two decades years ago. The great Blackout of August 2003, after all, started primarily when power lines sagged into trees in the Cleveland, Ohio, area.

Yeah, it’s tough to beat the power company and its chainsaw-wielding minions … but the Corrigans did it for a while. They had granted an easement to a Cleveland electric utility for a transmission line. In the wake of the blackout, the utility told the Corrigans (and thousands of others) that it would vigorously pursue cleaning up vegetation in the easements. This means, among other things, no trees within 25 feet of the lines.

The Corrigans had a big silver maple that was about 22-1/2 feet from the lines. They loved that tree, so they hired an arborist at considerable expense to trim it away from the lines and to inject the tree with a hormone to slow growth. Tough luck, the utility said, it’s coming down anyway.

So who do you call when the power company shows up with chainsaws and a gleam in its institutional eye? The Corrigans raced to the local common pleas court and asked for an injunction. The trial judge agreed, and the Court of Appeals concurred. Both of those courts sided with the Corrigans that the utility could only cut trees that were “a possible threat to the transmission lines.”

It seemed important to the Court of Appeals that the community had not experienced any service interruptions since the Corrigans had pruned the tree, although that reasoning’s pretty thin. The tree has to only fall once, cascading one failed transmission line into a continental disaster. But the Court seems to have been favorably impressed by the amount of money the Corrigans had spent getting the tree professionally trimmed.

The utility saw an issue here that was bigger than just the Corrigans and their lone silver maple tree. It framed the question as being one of who was really in charge here, the 88-odd common pleas courts spread throughout Ohio or the Public Utilities Commission of Ohio. The Ohio Supreme Court agreed that this was indeed the issue, and ruled that the inclusiveness of the state statute and regulations delegating power to the Public Utilities Commission of Ohio gave PUCO the sole authority to decide questions of vegetation management. (Ohioans spell out the acronym “P-U-C-O”: please don’t try to pronounce it as though it were a word).

I have to admit that the appellate decision left me with the uneasy feeling that the Court of Appeals’ attempt to do some rump justice here may have made it much more difficult for a utility to exercise its easement rights. To be sure, a utility being sued in a case like this would have to be prepared with an expensive and eye-popping case that graphically depicts the dangers that a tree in the transmission path — even a well-cared-for tree — can pose.

The Ohio Supreme Court’s holding provides electric utilities a much friendlier forum in which they must litigate issues of vegetation management, although that may not be a bad thing. Utilities have to walk a fine line, incurring ire if property owners think trees were pruned too aggressively, and facing universal fury (not to mention catastrophe) when service is interrupted by vegetation coming into contact with transmission and distribution lines.

Corrigan v. Illuminating Co., 122 Ohio St.3d 265 (Sup.Ct. Ohio 2009). The Corrigans granted a quitclaim deed to The Illuminating Company, the local electric utility, for a transmission line to run through their yard. The easement gave the Illuminating Company the right to “enter upon the right-of-way occupied by said transmission lines … with full authority to cut and remove any trees, shrubs, or other obstructions upon the above-described property which may interfere or threaten to interfere with the construction, operation and maintenance of said transmission lines.” The Corrigans had a large silver maple tree located about 22.5 feet from the centerline of the transmission lines. At considerable expense, they had their own arborist trim the tree and inject slow-growth hormone to keep the tree from posing a risk to the transmission line. Nevertheless, the Illuminating Company decided to remove the tree, and the Corrigans sued for an injunction.

The trial court granted an injunction barring the Illuminating Company from removing the tree, and the Court of Appeals agreed. The electric utility – seeing the issue as one that transcended the issue of one tree but rather affected the company’s ability to manage vegetation in its rights-of-way throughout the state – appealed to the Ohio Supreme Court.

Held: The Corrigans argued that the issue was purely a contract matter, but the Supreme Court disagreed. Noting that “[t]here is no question that the company has a valid easement and that the tree is within the easement” and the easement’s language was unambiguous that the utility had the right to remove trees that might interfere with its transmission lines, the Court said the issue was the correctness of “the company’s decision to remove the tree instead of pruning it.” That was “really an attack on the company’s vegetation-management plan [and] that type of complaint is a service-related issue[] which is within PUCO’s exclusive jurisdiction.”

The statute creating PUCO to administer and enforce these provisions provides that the commission hears complaints filed against public utilities alleging that “any regulation, measurement, or practice affecting or relating to any service furnished by the public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential.” This jurisdiction is “so complete, comprehensive and adequate as to warrant the conclusion that it is likewise exclusive.”

The Court used a two-part test to reach its determination. First, it asked whether the commission’s administrative expertise was required to resolve the issue in dispute, and, second, whether the act complained of constituted a practice normally authorized by the utility.

The Ohio Administrative Code chapter on electric service and safety standards requires utility companies to establish a right-of-way vegetation-control program to maintain safe and reliable service. The Code requires that each electric utility inspect its electric transmission facilities (circuits and equipment) at least once every year, in accordance with written programs, and takes a number of factors into consideration, such as arcing, sagging, and line voltage, as well as regulatory requirements from OSHA, FAA, and the Army Corps of Engineers. In addition, electric utilities are required to comply with the American National Standards Institute’s National Electrical Safety Code. The utilities are required to submit their programs to the Commission, which will resolve any disputes as to the efficacy of the plan.

The Court concluded that the Ohio Administrative Code made it clear that PUCO’s administrative expertise is required to resolve the issue of whether the removal of a tree is reasonable.

The second part of the test determined whether the act complained of constitutes a practice normally authorized by the utility. Again, the Court said, the Administrative Code clearly held that vegetation management is necessary to maintain safe and reliable electrical service. Thus, the Supreme Court ruled, the second part of the test was satisfied, and the Corrigans’ complaint fell within the exclusive jurisdiction of PUCO.

That meant that the Illuminating Company’s decision that the silver maple interfered or threatened to interfere with its transmission line was a service-related question and one that the Corrigans could only dispute in front of PUCO. The Court of Appeals judgment was thrown out.

– Tom Root

Case of the Day – Tuesday, September 16, 2025

Posted on September 16, 2025 by TLRoot tagged.

YOU HAD ONE JOB

The municipal position of tree warden in this country is unique to a few New England states. In Massachusetts and Connecticut, for example, state law requires that each town appoint one. A tree warden is a person in charge of shade trees on public town lands. The word “warden” was a common title for natural resource officials in the late 1800s. Being a warden signified a unique legal responsibility: to guard public resources against destructive forces that might include persons, insects, or diseases.

A tree warden may be either or appointed. In either case, the responsibility is the same – to oversee the care, maintenance, or removal of all public shade trees. As both manager and advocate, the tree warden must protect the trees and, where necessary, protect the public from the trees.

Massachusetts describes the tree warden’s functions as being “broad and includ[ing] responsibility for all community trees – on streets and town commons as well as in parks, schoolyards, and town forests. The position of tree warden requires qualified training in arboriculture, the science of tree care. A tree warden should also have good communication skills for dealing with the public, municipal department heads, and local politicians.”

Connecticut says that “Tree wardens are appointed public officials responsible for trees alongside public roads and in public spaces, other than those on state property or under the jurisdiction of a park commission. Each municipality is required to have a tree warden. The tree warden’s responsibilities include approving the planting, pruning or removal of trees under his or her authority. Public safety is among the chief concerns of the tree warden.”

Fans of the many “you had one job” posts online (and even on ESPN, back in the day) can appreciate the “fail” in today’s case. A Connecticut town tree warden ignores his duty to check on a tree that a concerned resident reports on several occasions as dangerous and decayed. The woman even had her own arborist inspect it, but since the tree was on town property, it was the town’s responsibility to care for it. And that meant it was up to the tree warden.

He ignored it for nearly a year. Sure enough, it fell… right across the road and onto a passing car. When the motorist and his wife sued the town and the tree warden, the defendants claimed immunity. It turns out there is plenty of immunity for a government official acting according to his or her discretion. But immunity for failing to drive out to check on a reported danger tree?

C’mon, man. You had one job…

Wisniewski v. Town of Darien, 135 Conn. App. 364, 42 A.3d 436 (Ct.App. Conn. 2012). Mieczyslaw (let’s call him “Bud”) and Jolanta Wisniewski were injured when a tree within the street right-of-way toppled onto his car in front of 35 Rings End Road, inside the Darien, Connecticut, city limits. This should not have surprised the Town, which had been notified several times by property owner Kristen Doble that her arborist had determined that five trees located near the roadway “need attention.”

On one occasion, Kris told the Town that limbs had fallen from trees near the roadway. On another occasion, she asked that the Town send someone to examine a “hollow” tree located near her front gate, next to the roadway, that had lost a leader (which is “a primary or terminal shoot of a plant (as a main branch of an apple tree or the terminal shoot of a spruce tree… the upper portion of the primary axis of a tree especially when extending beyond the rest of the head and forming the apex…” leader.

At the time Kristen complained and later, when the tree fell on Bud and Jolanta’s car, Mike Cotta was the Town’s tree warden. Pursuant to General Statutes § 23-59, he was responsible for the care and maintenance of trees located along certain rights-of-way within Darian’s geographic limits. There were no other express town charter provisions, rules or ordinances directing Mike’s duties as tree warden.

Bud and Jolanta sued the Town and Mike Cotta, claiming negligence against Mike and seeking indemnification against the Town pursuant to General Statutes §§ 7-465 and 7-101a. In addition, the complaint contained claims for liability pursuant to General Statutes §§ 52-557n and 13a-149 against the town.

The Town and Mike argued that Bud and Jolanta’s lawsuit was barred by the doctrine of governmental immunity. That motion failed. The Town and Mike moved for summary judgment, arguing, in part, that governmental immunity barred the Wisniewskis’ claims. The court denied the motion for summary judgment, and the case proceeded to a jury trial.

The jury found for Bud and Jolanta, holding that he had established Mike’s and the Town’s negligence under § 52-557n. Although the defendants established that their duty to maintain the subject tree was public in nature, they failed to establish that their duty to inspect, maintain and remove the tree was discretionary. Jolanta Wisniewski got $200,000, and Bud Wisniewski was awarded $1.5 million.

Mike and the Town appealed.

Held: Mike and the Town of Darian were liable for negligence.

As a general rule, a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity. In this case, Gen. Stat. § 52-557n abandons the common-law principle of municipal sovereign immunity and lists circumstances in which a municipality may be liable for damages. One is a negligent act or omission of a municipal officer acting within the scope of official duties. Section § 52-557n(a)(2)(B) explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions that require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law. Municipal officers are not immune from liability, however, for negligence arising out of ministerial acts. Ministerial acts are defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion.

The language of Conn. Gen. Stat. § 23-59 provides that many, but not all, of the duties of a tree warden involve the exercise of discretion, and thus are immune.

The determination of whether official acts or omissions are ministerial or discretionary for liability purposes is normally a question of fact for the fact finder. Generally, evidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive. Testimony of a municipal official, however, may provide an evidentiary basis from which a jury could find the existence of a specific duty or administrative directive.

A municipal employee, and, by extension, the municipality, may be liable for the misperformance of ministerial acts, but are entitled to immunity in the performance of governmental acts, including acts that are discretionary in nature.

Although Darian maintains no written policies directing the conduct of its tree warden, the town’s assistant director of public works, Darren Oustafine, testified at trial that the general direction provided to Mike Cotta upon receipt of a complaint “is always the same, look at the tree, make a determination. Is it a safety concern? Is it a priority?” Moreover, Cotta himself testified that upon receipt of a complaint regarding a potentially hazardous tree, he has a nondiscretionary duty to perform an inspection. “In light of the evidence adduced,” the Court said, “including Cotta’s own statements, which were couched in mandatory language, it was appropriate for the court to decline to direct or to set aside the verdicts on the basis that the defendants’ actions as a whole were discretionary as a matter of law.”

The evidence in the record was enough to let the jury reasonably find that some of Mike’s duties, including the duty to inspect upon receipt of a complaint concerning a potentially hazardous tree, were ministerial. This was especially so given that Mike testified that upon receipt of a complaint regarding a potentially hazardous tree, he had a nondiscretionary duty to perform an inspection. The evidence showed a total absence of any documentation in the town’s work order records concerning Mike having inspected the trees. Although Mike testified at trial that he had performed a quick visual inspection, he admitted that performing a quick visual inspection is “not the same thing as saying you inspected it at all…” In addition, in a pretrial deposition, Mike admitted that he had not inspected the trees for decay or, for that matter, “for any reason.”

Furthermore, while Mike testified at trial that he had gone to the property and pruned the hazard tree in 2004, Bud and Jolanta introduced a deposition transcript in which Mike testified that he had not returned to the property between March 14, 2003, and July 11, 2006. Thus, the Court said, “numerous issues were raised concerning Cotta’s credibility, and the jury was free to decide that Cotta was not credible and to resolve the claim in favor of the plaintiffs that he failed to respond to any of the complaints by going to the property to inspect the trees.” Bud and Jolanta’s expert “opined that the subject tree would have exhibited signs of decay in 2002 and 2003, when Doble lodged her with the town. Accordingly, the jury could infer that a reasonable tree warden, had he performed an inspection, would have determined that the subject tree was a hazard.”

– Tom Root

Case of the Day – Monday, September 15, 2025

Posted on September 15, 2025 by TLRoot tagged.

FOLLOWING DIOGENES (AND OTHER ANCIENT LIGHTS)

I found myself reading a revealing scientific (well, a “social scientific”) paper once about pseudo-profound bullshit.

No bullshit. I am not making this up. The study asked people to rate the profundity of randomly-generated sentences of touchy-feely crap (such as “wholeness quiets inﬁnite phenomena”). The authors concluded, among other things, that “a bias toward accepting statements as true may be an important component of pseudo-profound bullshit receptivity.”

I was impressed because up to the time I read the study, I firmly believed that wholeness really does quiet inﬁnite phenomena. Guess not, huh?

Unsurprisingly, when I considered today’s case – which illuminates the old doctrine of “ancient lights” – I looked for the type of bogus profundity that Professor Pennycook and his colleagues were writing about. As you can see to the left, finding something that was suitably bullshit was not hard.

“Ancient lights” was decidedly not bullshit. The name refers to, of all things, windows that have been around for awhile but eventually the name was loaned to an English doctrine of “presumptive title to light and air, received over land of another person, arising from the uninterrupted enjoyment of it for twenty years and upward, through the window of a dwelling house” (as described in Clawson v. Primrose). But America, being a land of opportunity and progress, was unwilling to tie the hands of property owners by implying easements of light and air in favor of countless neighbors.

Still, some found need for the “ancient lights” doctrine, and – because the doctrine was unavailable to them – tried the “side door.” The “side door” did not work for Rick Singer and the parents who bribed their kids’ way into college. And it didn’t work too well for the plaintiffs in today’s case.

Mohr v. Midas Realty Corporation, 431 N.W.2d 380 (Supreme Court, Iowa, 1988). Erick Mohr owned an office building situated on a commercial “strip” along Highway 20 in Fort Dodge, Iowa, with parking in front for use by tenants and customers. In 1983, Mohr’s neighbors to the west, Midas Realty Corporation and the Stan and Lynn Building Partnership, built a muffler shop on the front of their property with parking in the rear.

The muffler shop complied with zoning restrictions and setback lines, but it blocked the view of the Mohrs’ building to traffic approaching from the west.

Erick sued Midas for “unreasonable interference with Plaintiff’s lawful use and enjoyment of his private property.” He claimed damages and sought abatement of the alleged nuisance, that is, removal of the muffler shop.

Midas moved for summary judgment, arguing that Erick could not win under existing law. The trial court agreed, holding that Iowa nuisance law did not allow a suit for interference with view.

Erick appealed.

Held: Iowa law does not recognize a right to a view, and therefore, interference with a neighbor’s view does not a private nuisance make.

A private nuisance is generally defined at common law as “a substantial and unreasonable interference with the interest of a private person in the use and enjoyment of his land,” Not every interference with a person’s use and enjoyment of land is actionable, however. Here the trial court focused on a preliminary determination of whether Midas’ construction of the building, whether reasonable or unreasonable, interfered with a legally protected interest belonging to Erick Mohr.

Although the petition alleges interference with light, air, and view, Erick admitted at oral argument that the heart of his claim was that the Midas Muffler shop blocked the motoring public’s view of Erick’s building, thereby diminishing its value as a commercial property. Thus, he argued, Midas had enhanced its property at Erick’s expense, giving rise to a private nuisance action, where the parties’ competing interests in the use and enjoyment of land are weighed according to a reasonableness standard.

Midas argued that while Erick tried to pigeonhole his claim into a nuisance action, it was really a claim under the old English common law doctrine of “ancient lights.” Under that doctrine, a landowner acquired a negative prescriptive easement for sunlight across an adjoining landowner’s property and could prevent the adjoining landowner from obstructing the light once the easement was established by the passage of time.

The only problem with the “ancient lights” doctrine, Midas argued, was that every state considering the doctrine, including Iowa, repudiated its premise as inconsistent with the needs of a developing country. In fact, Iowa’s legislature passed a law in 1873 prohibiting the implied acquisition by adjoining landowners of “any easement of light or air, so as to prevent the erection of any building on such land.” Iowa Code § 564.2.

Mohr vigorously argued that his claim of nuisance had nothing to do with any claim of prescriptive easement for light and air, but the Court was unpersuaded: “We recognize,” the Court ruled, “that while disavowing any cause of action for interference with light, air, and view unless granted by express contract, our prior cases have left unanswered the question whether such claim might be sustained under the doctrine of nuisance. Squarely confronted with the question, however, we are convinced that giving vitality to such a cause of action in nuisance would be the same thing as granting a prescriptive easement.”

In other words, recognizing Erick’s right to enforce a nuisance claim for intentional interference with light, air, or view as something other than enforcement of the doctrine of “ancient lights” would be a distinction without a difference. “For a variety of reasons,” the Court said, “we think such an expansion of the law of nuisance would be unwise, at least in regard to the interference with view claimed here.”

Extending the law of nuisance to encompass obstruction of view due to lawful construction of a neighboring building would unduly restrict a property owner’s right to the free use of his or her property, interfere with established zoning ordinances, and result in an endless flood of litigation. Every new construction project is bound to block someone’s view of something, opening every landowner up to a claim of nuisance. The practical implication of such a right would be the need of every servient owner to obtain a waiver of the view easement from the “dominant” landowner. This would reduce development decisions to being made by a committee of all owners with sightlines to the project.

The Court found “no compelling reason to recognize an enforceable right of view over private property. Accordingly, we hold there can be no cause of action grounded in nuisance for blocking that view.”

– Tom Root

Case of the Day – Friday, September 12, 2025

Posted on September 12, 2025 by TLRoot tagged.

SPITE FENCE TAFFY PULL

Trust an angry plaintiff and a clever lawyer to stretch a useful concept like “spite fence” – which we have been talking about the last few days – like a salt water taffy pull.

We have established that a spite fence requires unreasonable height and a malicious motive. We have also figured out that a spite fence can be something other than a fence, such as the Maine widow woman’s “spite trees.”

It was probably inevitable that someone would go after a neighbor for planting plants that may someday be too tall. Add a complaint that the neighbor refused to knuckle under when the plaintiff tried to boss him and her around regarding their landscaping, and, voilà, you have malice.

Just as the cops in Minority Report arrested people who would someday commit a crime (surely a useful idea), this theory holds people liable because their plantings might someday be a natural spite fence.

Fortunately, the Mississippi courts that heard this one all made short work of it.

Blackwell v. Lucas, 271 So. 3d 638 (Ct. App. Mississippi, Nov. 20, 2018): The Lucases planted some plants and shrubs in the front yard of their Ocean Springs, Mississippi, home. The Blackwells believed that if allowed to grow, the plants and shrubs would at some indeterminate time in the future block their view of the ocean, the sunsets and the beautiful areas normally and typically available to property owners in the Oak Bluff Subdivision.

Thus, the Blackwells asked the Lucases to remove the plants and shrubs or to retard their growth so that their view of the ocean and surrounding area would not be impaired. The Lucases, being your average, reasonable American homeowners, declined courteously.

Actually, it may not have been “courteously.” The Blackwells argued that the Lucases were being mean: “The shrubs and plants installed by Mr. & Mrs. Lucas have no beneficial use and were installed and maintained by them for the purpose of annoying the Blackwells and preventing them from enjoying their property.”

The Blackwells, also being your all-too-common American homeowners, sued the Lucases for planting shrubs that “will unreasonably block the view of the Blackwells.” The term “unreasonably,” in this case, apparently meant anything that might alter the status quo in any manner the Blackwells found objectionable: “The actions of Mr. & Mrs. Lucas,” the Blackwell’s complaint alleged, “amounts [sic] to and/or equates [sic] to an invasion of the Blackwells’ interest in the use and enjoyment of their land and the invasion is intentional and unreasonable or negligent.”

Strong words, indeed! But the trial court was unimpressed and tossed the suit out on its ear. Not taking the hint, the Blackwells appealed.

Held: The trial court’s dismissal was upheld.

The Blackwells had no common law or statutory right to an unobstructed view across the Lucases’ property, nor did they have a right to dictate the type or placement of the Lucases’ plants and shrubs. The Blackwell complaint failed to state a cause of action for a nuisance or to allege any present injury or an imminent threat of irreparable harm for which there was no adequate remedy at law.

The Court of Appeals observed that a cause of action arises out of a pre-existing primary legal right with which the law invests a person. The right to maintain an action depends upon the existence of a cause of action which involves a combination of a right on the part of the plaintiff and the violation of such right by the defendant. Thus, the existence of a legal right is an essential element of a cause of action, inasmuch as a plaintiff must recover on the strength of his own case instead of on the weakness of the defendant’s case. It is the plaintiff’s right, not the defendant’s wrongdoing, that is the basis of recovery.

That right or duty must be a legal right or duty, and not a mere moral obligation that is enforceable neither in law nor in equity.

Applying the general notion to this case, the Court of Appeals observed that property owners have a legal right to cut and remove any part of a plant or shrub that grows on or overhangs their property. They have a legal right to sue to abate a nuisance. But property owners have no legally cognizable right to a view across their neighbors’ property. Nor do they have a right to dictate the type or placement of the neighbors’ shrubs.

The shrubs were not a nuisance. The Lucases would be subject to liability for a private nuisance only if their conduct is a legal cause of an invasion of the Blackwells’ interest in the private use and enjoyment of land. Again, without a legal right to a view across the property, there simply is no such interest to be invaded.

But the Blackwells tried to bootstrap their claim into a “spite fence” argument. They argued that the plants and shrubs would someday obstruct their view, and this fact gave them a viable cause of action for a “spite fence” nuisance.

The Court of Appeals held that the Blackwells’ “spite fence” claim had no basis in Mississippi law. Because the one Mississippi case on “spite fences” was decided by an evenly divided Court, “there is still no precedent for such a claim under Mississippi law. Moreover, we decline to recognize a new cause of action for a “spite fence” in a case that does not even involve a fence,” but instead only “some unspecified ‘plants and shrubs’ that, “[i]f allowed to grow,” allegedly may obstruct the Blackwells’ view.

– Tom Root