Case of the Day – Wednesday, August 13, 2025

Posted on August 13, 2025 by TLRoot tagged.

PEOPLE BEHAVING VERY BADLY

The late Jeffrey Epstein, Ye, Vladimir Putin, Yahya Sinwar, George Santos, Robert Menendez, even President Trump (whose increasingly shrill insults blast people who are (or were) supporters)… we’ve had a belly full of people behaving badly irecently.

Like we need this, here are a few more:

Welcome to the neighborhood …

Meet the Cooleys, neighbors who were so bad as to drive the Court to write a plaintive plea that everyone should try to get along. How bad, you ask? Well, Mrs. Cooley tried to run down her neighbor with her car. She built a chicken-wire spite fence. Her son threatened to beat up his elderly neighbor (who had just had a heart transplant). Yes, that bad…

This case is one of those rare fact-driven trial court decisions worth reading just to get the flavor of the Court’s incredulity that people could carry on like this. At one point, the judge observes that “[o]ne could almost use that well-worn lawyer’s expression ‘I rest my case’ after merely viewing Mrs. Cooley’s Exhibit 12, which in gruesome detail sets out the ‘this is my property’ syndrome.” The court finally issues a 15-point injunction ordering the Cooleys to stop doing 12 acts of malice, and the Quarantas to refrain from three others. It found application for a seldom-used Connecticut statute prohibiting structures built out of malice, banning a chicken-wire monstrosity erected by the Cooleys as a “spite fence.” Finally, it found the often-alleged but seldom-proven “intentional infliction of emotional distress” tort to have been shown here and ordered the Cooleys to pay the Quarantas’ legal fees.

At the end of its opinion, the Court ordered each party to read his final words out loud. Those were a plea by the Court for these people to rewind the clock to the beginning and try to get along. The Court’s frustration and sense that no matter what the law said, nothing would stop the bickering, is evident in the opinion. Not great moments in the development of the law … just a neighbor law tale worth reading.

There was even a “spite fence” in the story …

Quaranta v. Cooley, 2007 Conn. Super. LEXIS 3199, 2007 WL 4577942 (Conn.Super. 2007). People behaving very badly. You know how the opinion’s going to go when the Court begins by quoting an old Supreme Court opinion that “… it is the bickerings, spite, and hatred arising from neighborhood quarrels; it is difficult for any legislation to remedy such evil.”

The Quarantas were senior citizens who had lived in the same home for 26 years. Mr. Quaranta was on a life support system and eventually had a heart transplant. The Cooleys were younger than the Quarantas, but had a 25-year-old son and health considerations of their own. When the original landowner subdivided his property into the lots which became the homes of the Cooleys and Quarantas, there was an existing paved driveway to the Quarantas’ home from the street, bordered with a split rail fence and a grassy area on each side. The landowner created by deed two 25’ easement roads (for a total width of 50 feet) over the same area on which his driveway existed. Each lot owned 25’ of the road, and each owner had the right to pass over the 25 feet owned by the other. The practical effect of these easements is to allow all three parcels of land to share access to the public street with one common driveway. Although the neighbors couldn’t see each others’ homes, they ended up in a continuing vitriolic spat in which each side accused the other of using the “F” word, raising the middle finger on numerous occasions, and other immature and harassing behavior, such as the noisy racing of vehicles, the blowing of car horns and trash placement fights.

The Court held that the Cooleys, who were New York City dwellers unused to suburban life, utterly lacked credibility on the stand. It found that the battle began with Mrs. Cooley delivering a letter to the Quarantas within 30 days of her having moved in, in which she told them their lampposts and driveway sat on the Cooley property. Then, the Cooley son began throwing keg parties at the Cooley home, with noisy partygoers parking all along the right-of-way. The parties were noisy and annoying, and afterward, the Quarantas found themselves cleaning up empty bottles and cigarette butts. The parties were held about four times a month. The Quarantas complained without effect. The grand finale was the Cooley Halloween Party in 2005. When Mrs. Quaranta went out in her nightgown to ask for peace and quiet, the partygoers cursed her – one exposing himself to her – and urinated toward her. After this, Mrs. Cooley and her daughter, took to riding at high speed over the grassy area, even leaving deep tire tracks. Although the Cooleys’ trash pickup was on Friday, they would put their trash out all week long, at a spot where it was viewable only from the Quarantas property. Animals got to the trash during the week, and the Quarantas did the cleanup. Mrs. Cooley would drive fast down the mutual passage raising dust and her middle finger while blowing her horn the entire distance. She overdosed her own lawn with weedkiller, killing all of the grass ostensibly so she wouldn’t have to mow. Her lawn, of course, fronted on the Quarantas’ lush and meticulous yard.

There were countless verbal confrontations as well. The Cooley son yelled at Mr. Quaranta, a man past 65 with a heart transplant, “Hit me! I’ll wipe the ground up with you.” Previously, another judge had ordered the parties to refrain from intimidating, threatening, harassing, stalking, assaulting, or attacking each other, and to refrain from entering the property of the other, until the dispute was tried and resolved on the merits. After that, the Cooleys built an ugly chicken wire fence on the side of the passage that fronts the Quarantas’ house only. The trial court was called upon to mediate the dispute.

Held: The Court found for the plaintiffs, the Quarantas. It held that Mrs. Cooley’s testimony was so bad that it noted that “[o]ne could almost use that well-worn lawyer’s expression ‘I rest my case’ after merely viewing Mrs. Cooley’s Exhibit 12, which in gruesome detail sets out the “this is my property” syndrome. The court found it unsurprising that she took an axe to – and threatened to destroy – anything, even things of beauty, found on her property. These items included a lamppost, (that provided her light with the Quarantas paying for the electricity), fences (that enhanced the entrance to both their properties), a beautiful birch tree (with no professional evidence that it had to be cut down), a ceramic nameplate, (which her son admitted smashing) and even shrubbery. “Such warmth!” the Court said. “And it shows in the fifty-plus exhibits.”

The Court held that the chicken wire fence was maliciously erected, based on its character, its location, and the obvious state of mind and motive of the defendant. It ordered the fence removal pursuant to §52-480 of the Connecticut Statutes. It found that the Cooleys had exceeded the use of the right of way in a vindictive and malicious manner so as to harm the Quarantas, rather than just for ingress and egress. It held that a number of the Cooleys’ activities on this simple right-of-way were, “in layman’s terms, ludicrous, and in legal terms harmful, unnecessary, illegal and unreasonable.” It issued a detailed injunction spelling out 12 acts in which the Cooleys were not to engage, and 3 acts in which the Quarantas were not to engage.

A happy ending? Not with these folks …

Based upon the totality of the evidence, the Court held that the Cooleys directly and indirectly negligently and intentionally caused severe emotional distress to the Quarantas, and knew or should have known that their acts would result in severe emotional distress to the plaintiffs. In the case of Mr. Quaranta, the distress was found to be life-threatening. The Cooleys evidenced a reckless indifference to the Quarantas’ rights and showed an intentional and wanton violation of these rights. The injury was inflicted maliciously, with evil motive and violence. The Court awarded the Quarantas their legal fees as damages.

The Court took the unusual step of ordering a final statement to be personally read by the parties. It begged both parties to “go back to the day the Cooleys moved in and put everything back the way it was. Let us dig a hole and bury all of the ill feelings and hatreds that are all consuming.” The Court, writing this on Thanksgiving Eve, ended by noting that “[t]he person whom many people honor in this Holiday Season forgave everyone. Isn’t it time that the Quarantas and the Cooleys caught the spirit of the Season?”

Postscript: They did not. Rather, they were back in court repeatedly between 2007 and 2013, arguing over contempt motions filed against each other. Oh, the humanity …

– Tom Root

Case of the Day – Tuesday, August 12, 2025

Posted on August 12, 2025 by TLRoot tagged.

OUTTA SIGHT

You know the kind… never owned a saw, never used a set of hedgeclippers. Woodstock happened 54 years ago, but this guy’s head is still on Yasgur’s farm.

It’s getting toward late summer now. The high school football season is about to start, Labor Day is approaching, Christmas ads will begin in a fortnight… but the grass, trees, shrubs and weeds are still growing.

You, of course, being a conscientious type, have been taking care of your yard. Your grass is cut, your trees are trimmed, your sidewalk is neatly edged. But you’ve got a neighbor – we all have that kind of neighbor – who’s not as diligent.

His or her grass is high, green plants are growing in the house gutters, and bushy branches overhang sidewalks, streets and yards. We know – we’ve whacked our heads on more than one branch that should have been trimmed before it became a hazard on the sidewalk.

So what kind of duty does Joe Sixpack have to people passing on the sidewalks or streets?

Iowa says not much. Low-hanging limbs obscured sightlines on a curve, and motorist Marilyn Fritz claimed the obstructed line of sight caused her to run into another car. She sued the County for not maintaining clearance so drivers could see where they were going. The County, in turn, sued landowners Eugene and Doris Norton for having an inoperable chainsaw (that is, for not trimming their trees).

The Court grappled with the question of who had the duty to maintain the sightlines. It noted that Iowa had a policy of encouraging safe travel on the roads, but also had a policy of encouraging trees. So that analysis wasn’t very helpful. Although Dallas County urged the Court to stick the Nortons with the duty to trim, the Court was clearly troubled that if it obligated the owners to maintain the sight lines, those folks – having no expertise in determining what sight lines were appropriate – would have no idea what was right and what was wrong.

The County, on the other hand, did have the expertise, having as it did a highway department staffed with trained professionals. The Court ruled that the fact convinced it that the County should be the party that is most responsible for maintaining highway sightlines.

Plus, given its taxing authority, the County undoubtedly had more money. Cynical of us, you say? Cynicism is not a synonym for the word “wrong.”

It was important to the Court that the Nortons had not planted the trees, but rather they were “natural.” Also, while the branches were obscuring sightlines, they were not actually blocking anyone’s way down the road.

Fritz v. Parkison, 397 N.W.2d 714 (1986). Trees growing on the property of Eugene and Doris Norton limited the sight distance of two drivers whose vehicles collided on the curve. Plaintiff Marilyn Fritz sued Dallas County for failing to trim vegetation on the inside of the curve that obstructed the vision of each driver of the colliding vehicles. Dallas County, in turn, sued Eugene and Doris Norton, alleging that trees, bushes, and shrubs growing on Norton’s land blocked the view of each oncoming motorist and that the Nortons were liable for failing to remove the sight obstruction caused by this vegetation. The question presented to the court is whether landowners whose property abuts a curve on a rural road are potentially liable in tort when trees growing on their property limit the sight distance of drivers whose vehicles collide on the curve.

Held: The Court agreed that, but for the trees growing on the Nortons’ land, motorists approaching the curve from the north and from the east would be able to see each other for a longer period of time before meeting. The Court found that limbs on a few older trees growing on the Nortons’ land overhung the road’s right-of-way but not the traveled portion of the curve and that the Nortons had planted a few fruit trees along the roadway.

The Court identified two well-developed and clearly recognized public policies implicated in this case. First, in light of the increasingly mobile society, highways must be kept free from obstructions and hazards. Indeed, courts have at various times imposed liability against individuals for allowing a highway to become obstructed or hazardous. The second policy implicated by this action is the well-established state goal to encourage the growth and cultivation of trees and discourage their wanton destruction.

Here, the Court found that Nortons’ trees did not physically obstruct or intrude upon the traveled portion of the road, and neither directly impeded nor constituted any kind of latent defect that without warning might fall across the road or onto a passing vehicle. In this case, the Court held that the owner of land abutting curved highways owed motorists no duty to remove trees located on the landowner’s property where the trees did not actually obstruct the right-of-way, even if the trees were planted by the landowner.

The Court further held that naturally occurring or artificially created conditions on a landowner’s property should be taken into consideration in deciding the case, and whether the property is located in an urban or rural area is an additional consideration to determine liability.

– Tom Root

Case of the Day – Monday, August 11, 2025

Posted on August 11, 2025 by TLRoot tagged.

FISTS, NOSES AND TREES

Everyone’s heard the old saw that “the right to swing my fist ends where your nose begins.” Imagine your nose is a 65-foot tall maple tree, and my fist is a backhoe. Good luck with that – most imaginations aren’t quite that agile.

Here’s the problem. We all know about “self help,” the venerable old Massachusetts Rule that limits a landowner to trimming away encroaching branches and roots from a neighbor’s tree up to the property line. Michalson v. Nutting – and virtually every encroachment case decided in the eight decades since that decision – has given a property owner the right to trim back a neighbor’s tree to the boundary without any limitation.

At the same time, we all know about boundary trees, those trees whose trunks enter the earth smack on the property line, so that tree is attached to the ground in both properties. Boundary trees are special, and the general rule is that neither property owner may trim the tree without the consent of the other.

But what happens when a neighbor’s tree is not on the boundary, but so encroaches on a landowner’s property – both above ground and below ground – that the practical effect of the landowner’s Massachusetts Rule self-help will be to kill the tree?

Remember King Solomon? When two women appeared in front of him arguing over who was the mother of a baby, he proposed to settle it by cutting the baby in half so that each woman would get 50 percent of the child. That threat was enough to smoke out the imposter. In today’s case, dividing the tree in half would have had the same effect as cutting up the infant (albeit with less blood).

The Alvarezes own a nice place in Vermont, complete with a view of Lake Champlain. They have a 65-year-old maple tree next to the property line of their neighbors, the Katzes. It was close, but the base of the tree was completely on the Alvarezes’ property, so this was no boundary tree the parties were dealing with.

The tree had been standing for almost seven decades. In fact, when the Alvarezes bought the property 20 years ago, the maple had already sent roots and branches across the boundary between the two parcels.

The Katzes, who also enjoy a view of Lake Champlain, have planned for a number of years to add to their house, essentially doubling its size with a two-story addition. The only problem – or at least, the only problem we care about – was the maple tree. To add on, the Katzes would have to cut away about half of the maple tree’s branches and roots, in all likelihood killing the tree.

The Alvarezes and Katzes tried to resolve the problem amicably, but – just as happened with the women in front of King Solomon – there really wasn’t any middle ground. Either the Katzes would get their way, building onto their house and killing the tree, or the Alvarezes would have it their way. Like Dr. Seuss’s north-going and south-going Zax, neither neighbor would budge.

But then Katz somehow learned all about the Massachusetts Rule. It dawned on him that he could cut back the offending maple tree to the property line, both roots and branches. Sure, the tree might die, but the Massachusetts Rule said nothing about what happened to the tree after a neighbor used “self-cutting” trimming on it.

The Alvarezes ran to court and obtained an injunction against Katz. The trial court found that trimming the tree as Katz proposed doing would probably kill it. The injunction prohibited cutting away only about 25 percent of the tree, about half of what the Katzes needed for their ambitious plans.

The Katzes appealed, and the Vermont Supreme Court threw out the injunction. It held that the Massachusetts Rule was a blunt object, and had always been one. A landowner owns everything above and below ground level, and that owner can cut anything he or she wants to cut, without regard for the effect of the cutting. The Court said that was the law in Vermont and just about everywhere else.

The Zaxes wouldn’t budge, either …

The Supreme Court seemed a little uncomfortable with its decision, but it ruled in essence that the law is the law, and that’s the way Vermont had always done it. It noted, in a hint that was as subtle as an anvil, that cases where Massachusetts-style self-help had been limited – such as in Booksa v. Patel – the theory that had been advanced was that of nuisance. In other words, the Alvarezes could have argued that Katz’s proposed trimming would so endanger the tree that it would interfere with their enjoyment of their property. Recall in Booksa, the court ordered the defendant to trim the encroaching tree reasonably. The Vermont Supreme Court telegraphed that it would probably have done the same if the Alvarezes’ lawyer had only thought to make the argument. Oops.

Alvarez v. Katz, 199 Vt. 510, 124 A.3d 839 (Supreme Ct. Vermont, 2015). The Katzes own property in South Burlington around the Shelburne Bay area. The Alvarezes own the adjoining lot just to the north of the Katzes. The Alvarezes have a 65-foot-tall maple tree, the trunk of which is located entirely on their property. About half of the branches and roots from the tree cross the property boundary and encroach onto the Katz lot. Some roots extend under the Katzes’ existing deck.

For several years the Katzes have sought to expand their home by adding a two-story addition on the rear. The plans for the construction of the addition would require cutting the roots and branches that are encroaching on their property. This could encompass up to half of the tree’s roots and branches.

The Alvarezes and the Katzes have been unable to amicably resolve the problem of the maple tree. In 2013, when the Katzes considered taking unilateral action to trim the tree’s roots and branches, the Alvarezes filed for an injunction. The superior court found it more likely than not that removal of 50% of the tree’s roots and branches would result in the premature death of the tree, perhaps within five years and probably within ten from the time of cutting. The court employed what it called the “urban-tree rule,” under which trimming the roots or branches of an encroaching tree may be proscribed if the trimming will destroy the tree. The injunction barred the trimming of more than 25% of the roots and branches of the tree.

The Katzes appealed.

Held: The injunction was vacated. The Supreme Court reaffirmed “Vermont’s long-standing right of a property owner to trim branches and roots from an encroaching tree without regard to the impact that such trimming may have on the health of the tree.”

Vermont has long recognized ownership of property to include the ownership of that which is below the ground and that which is attached overhead. The right has been clear for almost 100 years, since Cobb v. Western Union Telegraph Co., (a 1916 decision that stated the Massachusetts Rule before there ever was a Massachusetts Rule). Cobb held that “it is a sound principle that where a tree stands wholly on the ground of one and so is his tree, any part of it which overhangs the land of an adjoining owner may be cut off by the latter at the division line.” The Supreme Court criticized the trial court for conjuring up an “urban-tree rule” that would be an exception to Cobb. The trial court had considered this case to be one of first impression in Vermont because of the anticipated adverse – and likely fatal – effect the root-and-branch cutting would have had on the encroaching tree. The Supreme Court held that any attempt to “distinguish” Cobb, that is, to find that the Cobb case was somehow different just because the Cobb tree was located in a rural setting, was wrong.

Further, the Supreme Court said, the “urban-tree rule” does not enjoy the support attributed to it by the trial court. Outside of two cases, the California decision in Booksa and one obscure New York decision, the Massachusetts Rule (which maybe we should have called the “Vermont Rule”) enjoys extremely widespread support. What’s more, the Court reasoned, the Vermont legislature has had 99 years to modify the Cobb holding by statute, and it has not bothered to do so. The Supreme Court concluded that the “right to cut encroaching trees where they enter the land of another, without regard to the impact on the encroaching tree by such cutting, is well-established under Vermont law.”

The Supreme Court noted that at common law, the right to cut encroaching boughs and roots historically counterbalanced a landowner’s right to grow shade trees on his land, regardless of the impact those trees may have in casting shade or encroaching upon the neighboring property. Common law provided no claim for damages caused by encroaching roots or branches. Instead, the remedy was one of self-help, allowing the cutting of roots and branches to the extent of encroachment.

Where other jurisdictions have departed from the common-law rule and allowed actions for damages as a result of encroaching roots or branches, they have generally relied upon nuisance principles. Even where such actions have been permitted, those jurisdictions continue to recognize the right to self-help. In this case, the Alverezes did not raise a nuisance claim, so “the issue of whether a nuisance claim might exist for the encroachment of roots and branches from the Alvarezes’ tree is not presently before the Court.”

The Supreme Court subtly suggested that the proper way for the Alvarozes to address the problem would be through the law of nuisance …

The Supreme Court defined the conundrum as follows: “[T]his case presents the competing interests of neighboring property owners. On the one hand, [the Katzes] have an interest in using their land, which they have purchased and upon which they pay taxes, as they see fit, within permissible regulations, free from limitations imposed by encroaching roots and branches from the neighbors’ tree, which they did not invite and for which they receive no benefit. The Alvarezes seek to restrict the use of the Katz property by preventing the removal of branches and roots on land that is not theirs and for which they have given nothing of benefit to [the Katzes] for suffering the encroachment. On the other hand, the Alvarezes wish to continue to enjoy their tree, which has been there for many years, without placing its viability in peril due to the construction that [the Katzes] wish to undertake.”

The Court observed that if the Alvarezes had the right to have their tree encroach onto the neighboring property, the obvious next question would be to what extent the encroached-upon property owner must suffer such an encroachment. The Supreme Court admitted that on some occasions the “exercise of self-help may result in the immediate or eventual loss of an encroaching tree, given the long-recognized rule in Vermont and its widespread support elsewhere, we decline to depart from the common-law rule in favor of the approach adopted by the superior court.”

– Tom Root

Case of the Day – Friday, August 8, 2025

Posted on August 8, 2025 by TLRoot tagged.

FUN DOWN AT THE OLD SWIMMING HOLE

After reading a report a few years ago about a Pennsylvania town cutting down its “rope-swing tree,” I reflected on the good old days (whenever they might have been).

Back at the turn of the century – the last one, not this one – no old swimming hole at the sweeping turn of a country creek was complete without some old inch-thick length of hemp rope attached to a high cottonwood branch. When the country boys of yore would skinny dip, they would swing high out over the creek, release and plummet into the cool water.

That was then. This is now, as the Town of Chester, New Hampshire, found out in today’s case. The town had a pretty nice park with a pond, open to the public without charge. Some time ago, persons unknown attached a rope to a tree overhanging the pond, and people used it to do exactly what country kids did a century ago (except clad in bathing suits). To make the game more interesting, sometimes a second person would stand near the rope to slap the feet of the person swinging on the rope before the swinger splashed into the water.

The Town Selectmen were concerned that the rope was unsafe. At this point, the logical response would be to remove it. Instead, the Town talked about erecting a “no swimming” sign, but that never happened. The Selectmen asked the police what was being done to stop things. The Chief said the cops kept a list of people seen using the swing.

The rope appeared about nine years ago, which is when the complaints started. Town residents voiced their concerns again in 2013, 2014 and 2015. Nothing happened.

Except for the inevitable, that is. On August 20, 2015, 12-year-old Christopher Kurowski was at the pond, trying to touch the feet of a person swinging on the rope. The two collided, and Christopher was seriously injured.

Naturally, the town was sued. And just as naturally, it defended under the New Hampshire recreational use immunity statute – RSA 212:34. That statute provides that “a landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purposes, except… [t]his section does not limit the liability which otherwise exists: (a) For willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity… (d) When the injury suffered was caused by the intentional act of the landowner.

The whole idea behind recreational use statutes like this one is to encourage private landowners to make their land available for public recreational uses by limiting their liability.

Chris’s lawyer gave the Town a run for its money, ending up in the New Hampshire Supreme Court. While the Town won, the frugal Selectmen probably wish they had just cut the swing down when it first appeared. Hardly an elegant solution, but a final one. And cheap.

Kurowski v. Town of Chester, 170 N.H. 307, 172 A.3d 522 (Sup.Ct.N.H., 2017). The Town owns and maintains the Wason Pond Conservation and Recreation Area, which includes walking paths and Wason Pond, open to the public free of charge. Since 2012, a rope swing has been attached to a tree overhanging the pond. No one knows who put it there.

A local resident told the Town Board of Selectmen that she was concerned about the safety of the rope swing. She asked the Board to install “no swimming” signs near the swing area. During the meeting, one Board member observed that the swing was a hazard. The police chief reported that police practice when trespassers were found using the swing was just to take their names and list them in a report.

The Board heard similar safety complaints in the following years, but it did not remove the swing or post any signs.

One hot day in August 2015, young Chris Kurowski was playing at the pond, standing in the path of a person using the swing. When Chris tried to touch the feet of his friend, who was swinging on the rope, the two collided, and Chris was badly hurt.

Chris’s father sued Town on Chris’s behalf, claiming the Town negligently or willfully or intentionally failed to remove the rope swing or post warning signs. The Town filed a motion to dismiss, arguing that the plaintiff’s suit was barred by one or both of New Hampshire’s recreational use immunity statutes – RSA 212:34 (the state tort claims statute) and RSA 508: 14 (the recreational use statute).

The trial court granted the Town’s motion to dismiss, holding that RSA 212:34 barred both of the plaintiff’s claims and that additionally, RSA 508:14 barred the plaintiff’s negligence claim.

Chris’s father appealed.

Held: Assuming that both RSA 212:34 and RSA 508:14 apply to municipalities (an issue the court did not rule on), the New Hampshire Supreme Court ruled that under the state tort claims statute, RSA 212:34, the Town was immune from liability on all of the plaintiff’s claims. Therefore, the Court did not rule on whether RSA 508:14 applied as well.

RSA 212:34 provides that “[a] landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purposes,” except for liability which otherwise exists [f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; [or w]hen the injury suffered was caused by the intentional act of the landowner.”

The issue, the Court said, was whether young Chris was engaged in an “outdoor recreational activity,” as that term is used in the statute. The Court said he was. An “outdoor recreational activity” is defined in the statute as “outdoor recreational pursuits including, but not limited to, hunting, fishing, trapping, camping, horseback riding, bicycling, water sports, winter sports, snowmobiling… operating an OHRV [off-highway recreational vehicle]… hiking, ice and rock climbing or bouldering, or sightseeing upon or removing fuel wood from the premises.” The list in the statute is not exhaustive, and activities not specifically enumerated – but similar in nature to the activities listed in the statute — may be an “outdoor recreational activity.”

The Court said that Chris’s activity was similar in nature to the enumerated activity of “water sports.” In fact, the Court had previously held that RSA 212:34 barred an action against a landowner for injuries sustained by a plaintiff who dove into a lake, striking his head on a submerged rock.

“Here,” the Court wrote, “the activity at issue involved a person launching herself over and into the water – using a rope swing. Christopher was attempting to slap the feet of the person using the swing before that person hit the water. We hold that Christopher was actively engaged in an outdoor recreational pursuit sufficiently similar in nature to the enumerated activity of “water sports” to constitute an “outdoor recreational activity” under RSA 212:34, I(c).”

Chris’s dad argued Chris was not engaged in “outdoor recreational activity” because the swing was man-made. The Court said that had no bearing on the issue. Likewise, the fact that the Town did not install or maintain the swing made no difference. “[T]he identity of the person or entity providing the equipment or structure used in an outdoor recreational activity is immaterial,” the Court ruled. “Indeed, many of the enumerated outdoor recreational activities, for example, hunting, camping, hiking, bicycling, and snowmobiling… involve the use of equipment or structures that could be owned or provided by anyone, including the landowner, a third party, or the injured party.”

In an argument that demonstrated some chutzpah, Chris’s dad argued his son’s conduct did not constitute an “outdoor recreational activity” because it was prohibited by the Town and was identified as hazardous. In other words, if someone ignores your rules, you may be liable, but if they follow the rules, you won’t be. Really? The Court sure didn’t buy it. “[T]he statute specifically contemplates that immunity will apply even if the activity at issue involves a known hazardous condition.”

Chris’s father also asserted that, because the Town knew of the hazard posed by the swing and took no action to remove it or post warning signs, the Town willfully failed to guard or warn against “a dangerous condition, use, structure or activity,” RSA 212:34, V(a). Chris’s dad said three elements had to be present for the landowner’s actions to constitute willful misconduct: “(1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) conscious failure to act to avoid the peril.”

The Court said it was not deciding whether Chris’s definition of “willful,” which he took from a decision interpreting California’s recreational user statute, was the right approach because even under that definition, Chris would lose. The Court ruled he had not alleged that the Town had “actual or constructive knowledge that injury was a probable, as opposed to a possible, result of the danger.” While he complained the Town knew about the swing and did nothing, “an allegation that a landowner knew about a particular hazard and did nothing is insufficient to establish that the landowner knew or should have known that injury would probably result from that hazard… At most, such allegations sound in negligence.

Finally, Chris’s dad argued he had shown that his son suffered injury as a result of the Town’s intentional acts. He said the Town’s conduct constituted an intentional act for the same reasons he asserts the Town’s conduct was willful: because the Town acknowledged that the rope swing was a hazard, was warned about that hazard on three occasions between 2012 and 2015, did nothing to remove it, and did not post warning signs.

The Court disagreed, holding that the “mere knowledge and appreciation of a risk – something short of substantial certainty – is not intent.” At most, Chris’s complaint was that the Town was negligent, that the Town disregarded a substantial risk and failed to act. Negligence is not actionable under RSA 212:34.

– Tom Root

Case of the Day – Thursday, August 7, 20253

Posted on August 7, 2025 by TLRoot tagged.

CHIA JERK

Should I be talking about Chia Pets? Sure. With Labor Day falling in fewer than four weeks, the Christmas shopping season is just around the corner. And what gift says “Happy Festivus” more than a Chia Pet? There are Chia pigs, Chia cats, Chia aliens, Chia emojis, Chia Care Bears®, even a Chia Donald J. Trump. Of course, there’s also a Chia Joe Biden, but Chia Trump claims his hair is much thicker and greener, and anyway, Chia Joe forgets he’s supposed to grow hair…

And Chia Donny’s orange, too, a lifelike pallor, indeed.

Alas, the CHIA we’re discussing here isn’t a ceramic figurine smeared with seeds. Instead, it’s the Connecticut Home Improvement Act. And the “jerk” is not our Commander-in-Chief (at least not in today’s column), but rather a slick lawyer who tried to use CHIA to cheat a local tree trimmer. I’ve told you about this case before, but this sad little cautionary tale bears repeating.

The takeaway here for the aspiring arborist should be entitled, “make sure all your oral contracts are in writing.” That rule goes double when you’re messing with a homeowner who happens to be a slick lawyer. Don made a deal with Ronnie “The Mouthpiece” LoRicco to cut the lawyer’s grass. The contract was verbal. After all, it’s a lawn, for heaven’s sake. Who needs a lot of printed mumbo-jumbo for a lousy lawn?

I think you know the answer to that one. Don started with cutting the grass, but one thing led to another. The mowing became some grass seeding became some stone moving became some grading and some tree trimming and retaining wall construction. When Don, tuckered out after all of that hard work, went to collect for his labors, slick Ronnie yelled “Gotcha!” Well, perhaps not literally, but he might as well have, because he refused to pay the $2,277 bill, claiming he didn’t owe the arborist a farthing.

Don sued. The lawyer-defendant argued that under the Connecticut Home Improvement Act, Don should have given Ronnie a written agreement. Because Don didn’t, Ronnie said, he didn’t owe anything for all the work. Shades of Henry B. Swap tricking the hapless but industrious Mike Mulligan! But like the classic story about the plucky steam shovel Mary Anne, today’s case has a happy ending.

When Ronnie moved for summary judgment on the grounds that Don violated the CHIA, the trial court showed the solicitor that it could get just as hyper-technical as he could. The work Don did, according to the court, seemed more like “maintenance services” than home improvements. That argument might be a hard sell where lawn planting and wall building are concerned, but what we have here is a court doing a little distributive justice. Plus, the court said, Don was asserting that Ronnie had raised the CHIA defense in bad faith, invoking the Act not because he was a sheep-like homeowner fleeced by an unscrupulous contractor, but instead because Ronnie had never intended to pay Don to begin with.

Don believed he was the one getting sheared, and the court — apparently thinking the same thing — intended to give Don a chance to prove it. But what a cautionary tale! Simple projects all too often become complex projects, and the fifty states have a patchwork of consumer protection laws that serve as a snare for the unwary arborist. Support your local lawyer! Spend a few bucks to be sure that the slick Ronnies of the world don’t try to shear you.

Don’s Landscaping and Tree Service v. LoRicco, 2007 Conn. Super. LEXIS 248, 2007 WL 2938602 (Conn.Super. Sept. 20, 2007). Don’s Landscaping entered into a verbal agreement with LoRicco for lawn cutting services, which over time mushroomed into the installation of a lawn, grading, removal of stones, seeding, moving of trees, planting and building walls. When LoRicco decided not to pay, Don’s Landscaping sued for the amount due, $2,277.00. LoRicco denied owing Don’s any money and moved for summary judgment on the grounds that the landscaper’s suit was barred under the Connecticut Home Improvement Act because Don’s didn’t give LoRicco a written contract. Don’s complained that LoRicco was an experienced attorney familiar with Connecticut law looking to beat Don’s out of payment, using the CHIA in bad faith.

Held: Summary judgment was denied to the lawyer-defendant. The trial court noted that for LoRicco to satisfy his burden, he had to make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. That evidence had to be viewed in a light most favorable to the opponent. In this case, although the Home Improvement Act refers to landscaping, there was a real question of fact whether the services provided by Don’s were governed by the Act. They appeared to be maintenance services, and not “home improvements.” What’s more, the Court credited Don’s allegations, finding they raised questions of fact of whether LoRicco’s reliance on the Act was a bad-faith dodge (of course it was). For those reasons, summary judgment was denied.

So Don got his day in court, but it was a day that shouldn’t have ever arrived. There is a thicket of local, state and (sometimes) Federal law out there – in addition to a substantial body of common law – just waiting to prove a snare to unwary but well-meaning people like Don. And you. A stitch in time saves nine. Here, a little piece of paper would have saved Don a lot of aggravation and legal costs.

– Tom Root

Case of the Day – Wednesday, August 6, 2025

Posted on August 6, 2025 by TLRoot tagged.

BUYER’S REMORSE

What do you get when you cross a lousy businessman with a careless homeowner? In today’s case, you get a whopper of a lawsuit.

The job’s not finished until the paperwork’s done.

The lousy businessman was Jeff Davis, who may well be a very good arborist but clearly was lacking in paperwork and billing skills. The shocked homeowner was Ron Sexton, who — to put it charitably — was woefully (and conveniently) forgetful, not to mention rather unforgiving.

Ron had hired Jeff to trim trees in 2002, and he paid the invoice, which had been figured at $1,200 (although he couldn’t remember ever seeing the bill he paid). He hired Jeff again the following year, but Jeff not only didn’t prepare a written proposal or estimate, he couldn’t even be sure he had told Ron the price would be the same as the year before.

For his part, Ron kept expanding the scope of the work, appearing frequently as the crews worked to suggest additional trimming. By the time Ron was done changing the job to encompass all 60 trees on his land, Jeff’s crews had 14-1⁄2 days of work in, presenting Ron with a bill for $17,400.

You’d think that Jeff would have said something to Ron about how the bill was mounting up. For that matter, you’d think Ron might wonder at some time during the two weeks of tree work how much it was all costing him. But neither Dumb nor Dumber questioned anything until the bill arrived in the mailbox. And then, Ron refused to pay.

Like every state, Kansas has a consumer practices act, intended to protect consumers from unscrupulous businesses that prohibit unconscionable acts and deceptive practices. And even if Dorothy isn’t in Kansas anymore, that doesn’t mean that the state’s restrictions are over the rainbow: just about all states have unfair or deceptive acts and practices statutes, consumer protection statutes, consumer fraud statutes, or the like. The laws are well-intended, but as our homeowner hero proves today, the likelihood that they can be used for mischief is high.

Here, we suspect that Ron didn’t feel like a defrauded consumer until some lawyer suggested that some KCPA claims would be a dandy way to beat paying Jeff. So Ron claimed Jeff had violated the KCPA by deceptive practices (not telling him how much it would cost and trimming well beyond the scope of the work in order to jack up the price) and unconscionable acts (performing unnecessary work and not giving Ron his money’s worth). The jury didn’t buy it — especially the whopper that he didn’t know it was $1,200 a day because he hadn’t gotten last year’s bill, a bill which he had managed to pay without seeing at the rate of (guess it) $1,200 a day — but the jury did apparently find that the value of Jeff’s work fell somewhat short of $17,400, because it awarded Mr. Davis only $6,500.

Does this look like a Mensa convention?

And here, we encounter a popular fiction: juries are wise and Solomonic. They’re not, often hurried, bored, a collection of weak-willed people bullied by one or two strong ones, even just plain stupid. But juries as fact-finders are the foundation of our legal system, and appellate courts protect that foundation with a most deferential standard of review. Typically, an appeals court won’t overturn a jury’s findings of fact unless no rational juror — even taking the evidence in a light most favorable to the winner — could have made the decision the jury handed down.

Here, just about everything in the record was contradicted. But assuming the jury believed evidence in favor of Davis Tree — and the appeals court made that assumption — it could have come to the conclusion it reached. Interestingly, the Court of Appeals seems to have been less than thrilled with the jury’s verdict even while showing it deference, asking cryptically, “Would the evidence also support contrary inferences? Yes, but that is simply not the question which we are called upon to decide.”

Everyone was a loser here, especially because all of this could have been avoided with a written estimate from the arborist and a careful written record of change orders maintained throughout the job. The homeowner was negligent to the point of recklessness as well, but… well, he was the customer. Expect customers to be foolish or to try to beat the contractor out of a fair price. The tree professional has to prepare for the naïve and the cunning customer alike.

Davis Tree Care v. Sexton, 197 P.3d 904 (Ct.App. Kan., 2008). In 2003, Ron Sexton hired Jeff Davis, doing business as Davis Tree Care, to trim the trees at his house. It was a big job, with over 60 trees trimmed and a final bill of $17,400. When Sexton refused to pay, Davis sued him for breach of contract and unjust enrichment. Sexton counterclaimed under the Kansas Consumer Protection Act (KCPA), alleging deceptive practices and unconscionable acts. Sexton had used Davis Tree the year before, for which he was billed $1,200 per day. He denied having seen the 2002 invoice and denied the 2002 job was priced on a per-day basis, but he admitted he had paid the same amount as was shown on the invoice. He maintained that Davis had never told him the 2003 job would cost the same as the 2002 work, and that was “willful misrepresentation of a material fact” under the KCPA.

Sexton and Davis Tree agreed that the work was intended to include removing two trees and removing an oak tree branch, but Sexton said he didn’t ask for anything else. Davis testified that Sexton also wanted some general trimming and that he came out from time to time and pointed out additional work he wanted done. Sexton argued there was no need for general trimming because that was what Davis Tree had done the year before. The trial court found against Davis Tree on the contract claim, but it awarded Davis Tree $6,500 on the unjust enrichment claim. As for Sexton’s creative KCPA claims, the court found that Davis Tree had committed neither deceptive practices nor unconscionable acts.

Sexton didn’t appeal the $6,500 he was found to owe Davis Tree on the unjust enrichment claim, but he did challenge the findings that Davis Tree had not violated the Kansas Consumer Practices Act.

Held: Davis Tree had not violated the law. Because the trial court jury had found for Davis Tree, the appellate court had to consider the evidence in a light most favorable to the tree trimmer. If the evidence so viewed supports the verdict, the appellate court will not intervene to disturb the verdict. The question on appeal, the Court said, was whether there was evidence to support the jury’s findings against Sexton’s claims.

The issue was whether Jeff Davis believed Ron Sexton knew the price and requested added tree trimming services. There was ample evidence that he knew what he had paid the year before, and that Davis believed he knew the price would be the same in 2003. Likewise, there was plenty of evidence that Sexton had asked for extra services. Based on that, a rational jury could have found from the record that Davis Tree did not willfully conceal or misrepresent the price or scope of the work.

Under the KCPA, a supplier shall not engage in deceptive acts or practices, including the willful use in a misrepresentation of “exaggeration, falsehood, innuendo or ambiguity as to a material fact,” the willful failure to state a material fact or the willful concealment of a material fact. Such practices are violations regardless of whether the consumer has, in fact, been misled. Here, the evidence supported that Jeff Davis of Davis Tree believed he and Sexton had discussed the price and that Davis believed Sexton knew the price for the 2003 job would be the same as the prior year — $1,200 per day. Likewise, the evidence supported the inference that Sexton requested additional trimming services. That, the Court said, was sufficient to find Davis Tree did not willfully conceal or misrepresent the price or scope of the work.

Sexton also claims the trial court erred in finding Davis Tree did not commit unconscionable acts in violation of the KCPA. He argued that because KCPA cases were so “fact-sensitive,” the appellate court had to conduct an “unlimited review” of findings that certain conduct was not unconscionable. But the Court disagreed, holding that the standard is “abuse of discretion,” that is, when no reasonable person would take the view adopted by the trial court. This is especially true where the credibility of witnesses is central to the resolution of the case. Credibility determinations will not be reweighed on appeal.

The KCPA prohibits a supplier from engaging in an unconscionable act in connection with a consumer transaction. In determining whether an act is unconscionable, a court considers a nonexclusive list of circumstances “which the supplier knew or had reason to know,” including whether when the consumer transaction was entered into, the price grossly exceeded the price at which similar property or services were readily obtainable in similar transactions by similar consumers, and whether the consumer was able to receive a material benefit from the subject of the transaction.

Sexton argued that the Davis Tree invoice lacked documentation, and compared it to invoices for other Davis Tree customers that differed both in amounts charged and in how specifically the tasks were described. Davis Tree cited the extensive equipment and complex procedures required to trim the large number of trees on the Sexton property over the claimed 14-plus days of work. The trial court found that “just looking at $1200 a day for three people and the equipment, the Court … does find that it has not been established by a preponderance of the evidence that the price was grossly exceeding the value of what was being provided.”

Davis Tree Service learned a costly lesson

The Court of Appeals found essentially that Sexton had not sustained his burden of proof. The trial court found there were three people working on the project, using a number of machines, and at least two of the people climbing trees with their gear. Even Sexton admitted to seeing the equipment and work being done. However, the trial court noted, Davis Tree’s failure to prepare specific proposals was “a bad way to run a business,” and “more of a poor business that was run by Mr. Davis and not an unconscionable act or an intentional misleading business. Just bad business practices.”

At trial, in support of the claim that he did not receive a material benefit under the KCPA, Sexton argued the work Davis Tree claimed to have done was the same as done the previous year and, therefore, unnecessary, or that Davis Tree charged for work not done, and that Sexton did not receive the benefit of the full $17,400 charged. But as the Court noted, the jury did not order Sexton to pay the full $17,400 charged. The jury’s verdict against Sexton was for $6,500, and that was not challenged on appeal.

The trial court found there was little evidence to show what the value of the work actually should be, but it considered the evidence of the number of people and amount of equipment involved to conclude $1,200 a day was not excessive and, therefore, not unconscionable. The Court of Appeals couldn’t say that no reasonable person would agree with that ruling. Thus, the trial court’s ruling that Sexton received a material benefit would not be disturbed.

-Tom Root

Case of the Day – Tuesday, August 5, 2025

Posted on August 5, 2025 by TLRoot tagged.

IF A TREE FALLS IN THE FOREST …

Island Realty’s coffers were as empty as a Venezuela grocery store’s shelves.

Taking a philosophical bend, a New York trial court asked “[i]f trees are cut in a forest that were going to be removed anyway does the owner have compensable damages?”

The Mottas couldn’t stand the overgrown and scrubby condition of unimproved land next door to their place, property owned by Island Realty. When another neighbor took matters into his own hands and cut back some of the offending saplings on the vacant land, the Mottas — bothered by falling leaves and insects, not to mention fears of West Nile virus — hired their own landscaper to cut back some other trees and vegetation on the Island Realty property.

The landscaper attacked the job with enthusiasm, and a neighbor — worried about the cutting because the Mottas weren’t home — called the cops. The police came and — this being New York City — everyone got a ticket because no permits to cut trees or park dumpsters had been obtained. One of the police officers reported the matter to Island Realty, too.

Island Realty had a case of the “shorts.” It wanted to develop the lot for housing, but its bank account was emptier than a beer cooler in Caracas. So it sued the Mottas for treble damages under New York law and brought in an expert who tried to sell the Court the amazing woof story that the one-third acre of cut saplings would cost $190,000 to replace.

The Mottas’ expert pointed out that the Island Realty development plan called for the removal of the trees that the Mottas had cut. In other words, far from damaging Island Realty, the Mottas had saved the developer a few bucks by doing what the developer would have had to have paid to have done.

The Court was a bit vexed. It didn’t much cotton to the Mottas’ form of self-help in clear-cutting the neighboring land, but it couldn’t really find any damage, either. It ruled that under New York law, the lesser of the diminution of value of the land or restoration costs was used to set damages. The Mottas had pretty well shown that the land wasn’t worth a dime less with the scrub cut. In fact, an aerial picture taken during the litigation (three years after the cutting) showed that the scrub was nearly all back.

The Court held that because Island Realty intended to cut the trees itself, damages were nominal, and it ordered the Mottas to pay $100, trebled to $300. In fact, the Court gave credence to the Mottas’ suggestion that the whole reason Island Realty sued to begin with was to raise a pot of money to start the development that it was too cash-starved to pull off by itself.

333, Island Realty Assoc., LLC v. Motta, 21 Misc.3d 554, 863 N.Y.S.2d 866 (Sup.Ct., Aug. 22, 2008). Island Realty was a land developer that owned a large tract of unimproved wooded land along the south shore of Staten Island. Joseph and Joan Motta owned a house next door. The Mottas had often complained that the unattended trees on the Island Realty land had created a nuisance because some of the trees hung over their property, and falling leaves had clogged their pool drains.

Motta’s neighbor – whose property also abutted the Island Realty land – exercised a little self-help by cutting a swath of Island Realty trees to create a 100-foot buffer zone between his backyard and the tree line. He did so without any permission or objection from the real estate firm. Seeking to create a similar buffer zone to safeguard his own property, Joseph Motta had a landscaper cut the trees that overhung his land and create a buffer zone away from the unattended trees for fear of insects and West Nile Virus, which was prevalent in Staten Island around that time.

While the Mottas were not home, the landscaper and his crew went to work but became overzealous, cutting down various trees without Island Realty’s consent and without any supervision from the Mottas. A nosy neighbor called the police to inform them that trees were being cut while the Mottas were not home. Because the complaint involved tree cutting, police officers from the New York City Department of Environmental Protection responded to the premises and observed a wood chipper feeding into an open container. Upon confronting the landscaper, the police officers learned that Joseph Motta authorized him to clear out some trees. The police officers originally estimated that 100 to 200 trees were cut in an area about half the size of a football field, but later admitted they were not certain how many trees were cut down. The police issued Motta five summonses for cutting down trees without permission and for placing a container on the street without a permit. All of those charges were dismissed by the criminal court, except for the container charge, for which the defendants paid a $250 fine.

Officer Friendly responded to a call from a nosy neighbor … and stopped by the Mottas for a chat.

Island Realty was not immediately aware of the felling of the trees but soon learned of it from the police. The company had planned to develop the wooded tract into a large development of houses, and in order to do so, it would have had to clear large sections of trees to comply with an approved plan. Ironically the Mottas argued that they rendered a benefit to Island Realty in removing trees at no expense to the company that ultimately would have to have been removed in order to complete the building project.

Nevertheless, Island Realty sued Motta under New York Real Property Actions and Proceedings Law § 861, which authorizes treble damages for the wrongful cutting of trees.

Held: Motta was liable for damages, but the damages awarded were nominal, $100 trebled to $300. The Island Realty expert estimated that 483 saplings would have to be planted to replace what was cut, at a price of $190,000. The trial court rejected the estimate as “incredible” and “preposterous.” Motta’s expert, on the other hand, testified that Island Realty was under no legal requirement to replace the trees, which it was going to cut down itself anyway. The Court accepted this opinion.

The Court followed the New York law principle that the measure of damages for permanent injury to real property is the lesser of the decline in market value or the cost of restoration. A plaintiff may demonstrate the costs of restoration, but then it becomes the defendant’s burden to prove that a lesser amount than that claimed by the plaintiff will compensate for the loss.

Here, the Court said, Island Realty only presented speculative testimony of the value of the restoration and disregarded balancing that testimony with the other evidence in this case, namely, that there was no decrease in the value of the land, especially when it was to be cleared for development anyway.

The Court warned that it did not condone the Mottas’ actions in cutting down Island Realty’s trees without permission. However, applying the rule of taking the lesser of the values between restoration —which was most speculative — and no diminution of the value of the land, the Court held it was clear that there was no diminution in the value of the land.

It was noteworthy, the Court said, that Mottas tried to buy the land from Island Realty after the cutting, and Island Realty wouldn’t adjust the price downward because the trees were gone. This suggested, the Court said, that even Island Realty didn’t think the land was worth less with the trees gone. Rather, it suggested that Island Realty’s lawsuit was only about getting startup capital for a building project from the Mottas instead of being about the value of the lost trees that would never be replanted.

– Tom Root