Case of the Day – Tuesday, January 27, 2026

Posted on January 27, 2026 by TLRoot tagged.

LIFE IS A BOWL OF BERRIES

Who knows how neighbor feuds that simmer for years and years suddenly explode? Maybe Tom Schwendeman knows.

Tom lives next to the Roaches (who are people, not insects). About 14 years ago, the Roaches surrounded their property with a chain-link fence, which was clearly on their land. They even had a surveyor lay down pins before the fence went up. Since that time, the Roaches have engaged in such loathsome activities as building campfires in their backyard on as many as five, yes, FIVE occasions, and even spraying herbicide on poison ivy growing along the fence.

Oh, the humanity!

We get a sense of how things were going with the Roaches, given that grumpy neighbor Tom called the EPA to complain about the campfires (which occurred at a frequency of about one every two years – if our math skills remain sharp). Being busy creating environmental disasters of its own, the EPA apparently declined to intervene. Also, Tom liked to pick berries that grew along the fence. The herbicide on the poison ivy was the last straw for Tom. Convinced that his next blueberry smoothie would be his last, Tom tried to kick the fence down.

You, of course, have heard the Miranda warning on countless police shows. You know the schtick: “You have the right to remain silent….” Heed it well. Tom should have. As we like to tell clients, remaining silent is not just your right: usually, it’s a damn good idea, too.

Tom did not remain silent but instead vented his spleen in the presence of the deputies who responded to the call. He admitted the fence belonged to the Roaches and was on their land, but… well… the campfires! And the berries! How much is a man supposed to endure?

When it came time for Tom’s misdemeanor trial, his lawyer did not have much to work with, other than Tom’s frivolous argument that the fence was already in bad shape, and his tirade did not make it materially worse. For good measure, Tom threw in the woof story that he was only trying to get the fence off his land. The last defense might have worked… if Tom had kept his mouth shut when the cops had first shown up.

State v. Schwendeman, Case No. 17CA7 (Ct.App. Athens Co., Jan. 17, 2018) 2018 Ohio App. LEXIS 242. The state charged Tom Schwendeman with criminal damaging, a misdemeanor, because he damaged a chain-link fence between his property and that of his neighbors, Dawn and Gordon Roach.

The Roaches installed the fence about 13 years ago. One day last summer, Tom – apparently furious because the Roaches had sprayed herbicide along the fence to kill poison ivy – began yelling, kicking, and showing “a lot of anger towards the fence,” as a witness put it. Someone called the sheriff, and Tom admitted to a deputy that he knew it was not his fence, that the Roaches liked to have campfires in their backyard, which bothered him, and that they had sprayed herbicide for poison ivy along the fence line. Tom said he picked berries along the fence.

By the time he got to trial, Tom had an explanation that was a little more congruent. He complained about his problems with the five or six fires the Roaches had built in their backyard and argued that because the fence was 12 years old, the only damage he saw to it was “wear and tear that’s happened over the period of twelve years. More than twelve years it’s been there.” He claimed he witnessed tree branches falling onto the fence and the Roaches’ children climbing it, causing it to come apart. On more than one occasion, Tom claimed, the kids made “the fence pull loose and collapse…. when they were climbing it.” He said he carefully disconnected the cyclone fence from the posts because it was on his property and he wanted to move it. Tom claimed the Roaches knew it was on his land, but they refused to move it unless Tom had the property surveyed and took them to court.

But on cross-examination, Tom admitted he was angry when he began dismantling the fence. “I had been poisoned,” Tom testified. “My berries had been poisoned… my food had been poisoned, and my next smoothie would make me very ill.” Tom admitted he did not “own” the fence, but he continued to press his claim that “it was on my property.”

Tom’s lawyer argued that children, dogs, and trees caused the damage to the Roaches’ fence. However, Tom’s defense counsel did not seek a jury instruction that Tom was exercising a privilege to remove an obstruction on his own land and did not object to the court’s jury instructions.

The jury found Tom guilty. He was ordered to pay restitution and a fine. Tom appealed.

Held: The conviction was upheld. Tom claimed on appeal that he had the right to remove obstructions from his land, but he never asked the court to instruct the jury on that defense.

When a party fails to object in the trial court, generally, he or she cannot make a claim on appeal that was not raised below unless he or she can show “plain error” that affects substantial rights. It’s a tough standard to meet.

Ohio law indeed holds that a landowner has the right to use self-help to remove encroachments on his property, provided he acts with reasonable care. That is what is called an “affirmative defense” to the criminal damaging charges that were brought against Tom. But a defendant is not entitled to have the court give the jury that instruction unless he has come forward with at least some evidence that, if believed, raises the affirmative defense. Otherwise, the court is not permitted to give a jury instruction on the affirmative defense.

Tom testified that the fence was on his land, but he didn’t offer any evidence that that was so. He could have shown a deed, a survey or even a plat map. But he had to show something. What’s more, not only did Tom offer nothing at trial, but his testimony that the fence was on his land directly contradicted his statements to two sheriff’s deputies. Without providing a rationale for the inconsistency with his prior admissions to the deputies, the Court said, Tom’s trial testimony was not credible. Because there was no credible evidence supporting his contention that he owned the land, the trial court – as a matter of law – could not properly give a jury instruction on the affirmative defense.

Tom also argued to the court of appeals that his defense attorney was a putz. The 6th Amendment to the Constitution guarantees all criminal defendants effective assistance of counsel. Here, Tom fumed, his attorney was ineffective because he failed to request the jury instruction on Tom’s privilege to remove an encroachment from his land. The appellate court said no dice: based on the lack of evidence supporting the claim, the court properly would have refused to give the instruction. Tom’s trial counsel cannot be deficient for failing to request an unwarranted jury instruction. Anyway, the Court of Appeals observed, Tom’s lawyer was pursuing a “wear and tear” defense at trial, making a decision not to argue that Tom also had the right to move it off his property fairly sound trial strategy.

Trial counsel cannot be found deficient, the Court of Appeals said, for failing to request an unwarranted jury instruction or for exercising sound trial strategy.

– Tom Root

Case of the Day – Monday, January 26, 2026

Posted on January 26, 2026 by TLRoot tagged.

AGREEING TO DISAGREE

It happens more often than you’d think. Over a period of years and successive owners, everyone starts thinking that the old hawthorn tree, a big old rock, or even a crack in the curb marks the boundaries between the old homestead and the Smith house next door.

But it isn’t.

These kinds of problems could be avoided if people only hired surveyors regularly or reread their deeds and paced off all of those metes and bounds regularly. Of course, people by and large are normal, so they don’t usually do such things.

Most states have statutes that address what happens when owners jointly misunderstand their boundaries. The thinking is that if enough time elapses, there’s little to be gained by trying to unwind what everything thought was a fact. Or, given enough time, perception becomes reality.

Of course, claiming that a new boundary has been agreed to by acquiescence is fraught with peril because the other party – whose acquiescence must be shown – probably disagrees with the claimant (or they would not be in court to begin with). That’s what happened to the Guthries in today’s case.

Guthrie v. Jones, 780 N.W.2d 248 (Court of Appeals, Iowa, 2010). The Guthries’ property abutted land owned by Jones. A line of shrubs and trees ran along one side of the adjacent properties, and the Guthries had always believed that the tree line marked the property boundary.

It didn’t. Instead, a 2007 survey by neighbor Jones showed the property line to be 10 feet to the west of the line of shrubs and trees. The Guthries had gotten used to thinking they had 10 feet more room in the sideyard than they really did, so they brought suit, arguing that under Chapter 650 of the Iowa Code, the shrub and tree line – not the surveyed line – should establish the actual boundary. The Guthries claimed that the Joneses had agreed to the property line being marked by the trees, an argument known as “acquiescence.”

The trial court found that the survey established the boundary line between the two properties because the Guthries did not prove the Joneses’ acquiescence.

Held: The appellate court affirmed the trial court. Iowa law governing boundaries by acquiescence holds that “a boundary line may be established by a showing that the two adjoining landowners or their predecessors in title have recognized and acquiesced in a boundary line for a period of ten years.” The owners’ recognition may be evidenced by conduct or by claims asserted by the parties, but it must be by both parties. The acquiescence by both parties is a condition precedent for proving the existence of a boundary by acquiescence.

The party seeking to establish a boundary line that deviates from the surveyed boundary line must prove acquiescence by clear evidence. This is a higher standard than the usual civil standard of proof, which is “preponderance of the evidence” (which means, essentially, by a majority of the evidence).

In this case, the appellate court agreed with the trial court that Jones did not consent to the shrub and tree boundary line for the required 10-year period. The Guthries purchased their lot in 1979. At that time, the seller placed metal pins in the ground to mark the boundary line. Subsequently, the Guthries used the pins as a guide for mowing. Jones did not object to using the land “close to, if not over the surveyed boundary line.” However, the court reasoned that this failure to object constituted nothing more than a neighborly gesture and fell far short of showing Mr. Jones’ consent to a new boundary line.

At trial, Mr. Jones asserted that he maintained the area in question since 1989 and did not recognize the shrub and tree line as the true boundary. The Guthries didn’t have sufficient evidence to disprove this. Thus, the Guthries failed to prove their claim for acquiescence.

– Tom Root

Case of the Day – Friday, January 23, 2026

Posted on January 23, 2026 by TLRoot tagged.

ILLEGAL SUBSTITUTION

It’s late January, and you’re fired up to watch New England play the Broncos (who the smart money says are done because they lost Bo Nix to a broken ankle)? I saw this happen in college football, late 2014. A top-ranked team wins big rivalry game,but the star QB is lost to a broken ankle. Third-stringer called up, learns a handful of plays, and leads the team to a national championship. Cinderella story.

Hey, Denver. It can happen.

And how about the 49ers’ last-second win over the Seahawks? Just kidding.

It’s a trick play! Interesting in football, less so in the courtroom.

There were only four games to watch this past weekend, but we need to start brushing up now on football’s finer points. Such as the ref having to touch the ball between plays. And illegal substitution.

Trials aren’t supposed to be conducted by trickeration. Parties have a full chance to engage in discovery — seeing the other party’s documents, taking depositions of witnesses under oath, that sort of thing — well before trial.

In today’s case, a woman was killed when a tree branch broke free in a storm and struck her. Her husband sued, naming the owner of the tree and the power company that had an easement where the tree stood, among others, as defendants. He claimed that the tree hadn’t been trimmed properly and that negligence had led to his wife’s death.

At trial, the defendant called a witness to authenticate the location of the tree relative to the road. The plaintiff threw the red flag because the witness hadn’t been listed on the defendant’s expert witness list. An illegal substitution, he complained. The trial court didn’t think so but offered to adjourn the trial so that the plaintiff could take the witness’s deposition. A solution neater than Pete Carroll’s hair, you say? One might think, but the plaintiff wasn’t interested.

During the witness’s testimony, it developed that he hadn’t done the survey himself but instead was only vouching for someone else’s survey. The defendant announced it would call the two men who had taken the survey, and the plaintiff cried foul again. The trial court noted that the location of the tree was critical, and let them testify anyway. The defendant won by a touchdown.

Was it a blown call? The plaintiff decried it as uglier than a Pittsburgh Steelers retro uniform. The Court of Appeals — sitting up in the review booth — typically gives substantial deference to trial procedure decisions made by the trial court. It held that letting the witnesses testify was well within the trial court’s discretion. It noted that Slater could have taken the adjournment offered, and inasmuch as he didn’t, he was hard-pressed to argue he was hurt by the trial court’s decision.

C’mon, Patriots! Go Broncos! And Seahawks and Rams! Keep us interested between the commercials.

Slater v. Charter Communications, Inc., 2007 Mich. App. LEXIS 2821, 2007 WL 4462396 (Mich.App., Dec. 20, 2007). The Slaters were driving on West Torch Lake Drive in Rapid City when they came upon tree branches that had fallen from a tree and were obstructing the roadway. The weather was rainy and windy. As the Slaters returned to their car after clearing the roadway, a large limb from the same tree broke off, fell onto a power line and then struck Mrs. Slater in the head. She died the following day from her injuries.

Her husband sued everyone, including bringing a negligence action against Consumers Power Company and a premises liability claim against defendant Charter Communications. Mr. Slater alleged that the tree was in Consumers’ easement and that Consumers breached its duty by failing to remove the dangerous limb from the tree. He also alleged that the tree was on Charter’s property and that Charter breached its duty to maintain the property in a safe condition by failing to remove the dangerous limb from the tree.

The identity of the expert witness became a shell game …

Consumers moved for the case to be thrown out, asserting that the facts showed that it wasn’t responsible for trimming the tree from which the limb fell. Slater admitted that he lacked any evidence that Consumers was responsible for the tree, and in light of this, the trial court granted Consumer’s motion. At trial, Charter announced that it would call John Korr, the survey department development manager for Gosling Czubak Engineering Sciences, Inc., to authenticate a tree location survey that had been submitted to the court about one year earlier. Charter argued that the tree was not on its property but rather within the road right-of-way. Slater moved to strike Korr as a witness because Korr was not listed on the expert witness list. After the trial court indicated that it would allow Korr to testify, the court offered an adjournment to allow plaintiff to obtain an independent survey and depose Korr, but he declined.

After interviewing Korr on the third day of trial, Slater informed the trial court that he had just learned that Korr neither took the measurements nor prepared the survey. He had just verified it . The trial court then allowed Charter to call Simmerson and Anderson, the individuals who had taken the measurements and actually written the survey, to testify. Following the trial, the jury found that the tree was located in the road right of way and, therefore, judgment was entered in favor of Charter. Slater appealed.

Held: Judgment for Charter was upheld. The Court of Appeals held that the trial court properly dismissed Consumers Power from the suit, because with Slater’s admission that he had no evidence that Consumers had trimmed the tree, there was no genuine issue of fact.

The Court also ruled that the trial court had not abused its discretion by allowing Korr, Simmerson, and Anderson to testify. The decision whether to allow the late endorsement of an expert witness is reviewed for an abuse of discretion. Generally, the rule is that justice is best served where an unlisted witness can be permitted to testify, as long as the opposing party’s interests are adequately protected. Here, the trial court acknowledged that Slater had not gotten to take Korr’s deposition but noted that whether the tree was located on the plaintiff’s property rather than in the road’s right-of-way was a critical factual dispute, and the existence of the survey had been known to Slater for about a year before the trial commenced. The court offered Slater an adjournment to obtain an independent survey and to depose Korr, which he declined.

That was enough, the Court of Appeals ruled. Consequently, it held that the trial court had not abused its discretion.

– Tom Root

Case of the Day – Thursday, January 22, 2026

Posted on January 22, 2026 by TLRoot tagged.

SMALL SQUABBLES, BIG PRINCIPLES

We like to deal in broad pronouncements of property law here, but the sad fact is that a lot of litigation about property rights is pretty small-minded. The parties today, Steve and Maggie, had a fairly common arrangement. Steve’s house was landlocked, but he owned an easement to cross Maggie’s place on a driveway.

The easement was 50 feet wide, but the drive itself was only 12 feet wide. We cannot tell who started the sniping. Maybe it was Steve, who piggishly demanded dominion over all 50 feet of the easement, whether he used it or not, banning Maggie from landscaping even where it did not interfere with the driveway. Maybe Maggie set out to harass Steve by installing fences, placing ornamental boulders and planting trees to crowd the driveway.

Clearly, however, things devolved to the point that both Steve and Maggie felt it was worth it to pay lawyers to slug it out in court. Not that we think that’s all bad: lawyers have to eat, too. But the law was pretty settled, and it seems that the lawyers should have dragged their respective clients by the ear into a conference room, where the facts of life (and litigation) could be explained.

Still, there’s a worthwhile principle here for the many homeowners who complain to us every year about various utilities coming through their yards, trimming or removing trees, tearing up bushes and laying waste to landscaping. The utilities invariably wave their easements at the homeowners and say, “Read it and weep.”

The homeowners angrily ask, “Can they do that?”

Then, we have to explain that the homeowner holds what is called a “servient estate,” which is as subordinate and groveling to the easement holder (the “dominant estate)” as the names imply. The utilities and their marauding contractors can do what is reasonable to permit them to get the benefit of the easement for which they bargained.

As well, there’s a second worthwhile principle in today’s case. If you get into a kerfuffle as a property owner or an easement holder, try to work it out. The old legal aphorism is true: a bad settlement is better than a good lawsuit.

Campbell v. Sullivan, Case No. FSTCV166028793S (Superior Ct. of Connecticut, Dec. 11, 2017) 2017 Conn. Super. LEXIS 5104: Maggie Sullivan is the homeowner at 1 Lennon Lane in Wilton. Steve Campbell owns the abutting property at 2 Lennon Lane. Steve has an easement for a 50-foot-wide strip across Maggie’s property to be used as “a right of way for all lawful purposes of ingress and egress, including public utilities.” The easement is the only way Steve has to get from the street to his property.

The fifty-foot-wide right-of-way described by this easement contains a paved driveway about 12 feet wide known as Lennon Lane.

Steve sued Maggie, claiming that over time, she had placed rocks and erected fencing within the 50-foot right of way, as well as “allowing” trees and other overgrowth to impede ingress and egress through the easement. Maggie argued that any actions she has taken to encroach into the easement are minimal, reasonable, and do not impede Steve’s access to 2 Lennon Lane. For her part, Maggie complained that Steve had trimmed trees and other plants within the 50-foot right-of-way, which are actually located on her property, without her consent. Steve responds that he is entitled to the entire 50-foot right-of-way granted by the easement, and that anything Maggie places within the 50 feet violates his rights.

Held: Steve and Maggie couldn’t work things out for themselves, so the court did it for them, giving each a little and taking from each a little.

To figure out the nature of Steve’s rights, the court started with the deed itself and then looked at the situation of the property and the surrounding circumstances, all in order to “ascertain the intention of the parties…” The language of the grant is given its ordinary meaning in the absence of anything in the situation or surrounding circumstances which indicates a contrary intent.

The principle is that the “holder of an easement… is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude.” This means that the easement holder can use the easement in any way reasonably necessary to fulfill the intent of the parties. The court held that the “right of way is for ingress and egress. This is broad enough to include the ability to turn around, reverse, and enter and exit safely. It does not include the right to park on the right-of-way. On the other hand, merely because the defendant owns the fee in the right of way, she does not have the right to obstruct the plaintiffs’ right for all lawful purposes of ingress and egress.”

The court said it was Steve’s job to maintain the easement, but his maintenance had to be reasonable. “The holder of an easement,” the court said, “is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment. The law is settled that the obligation of the owner of the servient estate, as regards an easement, is not to maintain it, but to refrain from doing or suffering something to be done which results in an impairment of it.

Under these circumstances, the court said, Steve has no right to compel Maggie to maintain it for his benefit. He had to do it, and do it “in a reasonable fashion.”

Steve spun a tale about expecting “prefabricated modules” that would be used as additions to his house. He said he would need at least 30 feet of the 50-foot easement for the trucks. It turned out, however, that Steve had not exactly ordered the prefabs yet, did not know when he would order them and when he would pay for them. The court was unimpressed, saying, “As of the time of this decision, the plaintiff’s plans to remodel his home are not definitive reasons as to why… he would need access to the entire fifty-foot right-of-way.

The court ordered some of the rocks, fencing and bushes removed. It prohibited Steve from parking in the easement and limited tree trimming to one area where the branches interfered with ingress.

– Tom Root

Case of the Day – Wednesday, January 21, 2026

Posted on January 21, 2026 by TLRoot tagged.

THE SINKHOLE WAS LINED WITH GOLD AFTER ALL

When we last left our intrepid Air Force Academy cadets, they had just been rescued in the nick of time from the runaway train that was the U.S. District Court for the District of Colorado. At the same time, the dastardly Jim Nelson saw the Tenth Circuit Court of Appeals snatch the cadets’ $7.7 million (it was probably the mortgage money) from his grubby mitts.

OK, that’s both hyperbolic and fictional. The 4,400 USAFA cadets had not been sued individually, but rather the U.S. government was the defendant. What’s more, Jim was not dastardly. His hands may have been grubby, but that was because he fell into a massive sinkhole on what may or may not have been a bike path on the expansive Academy property. The District Court found that the Academy’s management had breached a duty to Jim, whom it ruled was USAFA’s invitee (despite the bike path having signs warning against trespass). But the Tenth Circuit Court of Appeals rode (or flew) to the Academy’s rescue, applying the Colorado Recreation User Statute and holding that USAFA was immune from liability because it had opened up its bike path without charge for the public’s use, whether it intended to (or even knew it had) or not.

But the Tenth Circuit decision had a little “gotcha” right at the end. After finding the RUA applied, the appellate court remanded the case to the District Court to determine if an exception to the RUA’s liability limitations applied — whether the Air Force Academy’s actions constituted a “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm…” Such a failure is an exception to the RUA’s broad immunity.

Last spring, the case was again in front of the District Court, which seemed just a little too enamored of the bike rider and too dismissive of USAFA management for our tastes. After all, a sinkhole big enough to swallow Jim? We’ve seen the Academy grounds, even the unimproved parts, and they are pretty wide open, sparse of trees and underbrush. How did Jim, who admitted he rode the trail regularly, miss seeing the sinkhole well before he rode into it?

Alas, we’ll never know. What we do know is that the District Court concluded that the Academy folks knew people used the trail although they were not supposed to. A USAFA employee who maintained the 40-square mile grounds saw and photographed the sinkhole a few weeks before the accident, but because he himself did not know that people were using the path despite the signs, he saw no reason to fill the sinkhole.

But thanks to the tort doctrine of respondeat superior, which is a Latin way of saying the company is to blame when its employees are negligent in the course of their employment, the District Court strung together management’s knowledge that people ignored the signs and used the path with the employee’s knowledge of the sinkhole, and found that USAFA willfully failed to guard or warn against a known dangerous condition…”

Voilà! Just like that, the Air Force Academy was back on the hot seat, and Jim rode off on his bicycle with 160 lbs. in his rucksack, which is about what $7.3 million in 100-dollar bills weigh.

Nelson v. United States, 256 F. Supp. 3d 1136 (D.Colo. 2017): James Nelson was seriously injured in a bicycle accident on September 3, 2008, when he encountered a sinkhole/washout on a bike path on United States Air Force Academy land. He sued under the Federal Tort Claims Act for damages. The Tenth Circuit previously determined that the Academy was immune from liability within the limits of Colorado’s Recreational User Statute.

Prior to Jim’s accident, USAFA knew that the path existed on its property and that members of the public used the path where Jim was injured. Upkeep of the property was the Academy’s responsibility. The Academy had a Trails Management Plan that provided guidance about the proper maintenance to be performed on official trails, but the asphalt path on which the biking accident occurred was not on the Academy’s Real Property Record, so maintenance of the path did not fall within the scope of a contract the USAFA had with a maintenance company.

The sinkhole Jim encountered was the result of off-site water flowing onto Academy property that overwhelmed the culvert running under the path, causing a washout. Dr. Brian Mihlbachler, an Academy contractor responsible for grounds maintenance, testified that the sinkhole was large and readily visible during the day. However, a witness who encountered the sinkhole while jogging the morning after Jim’s accident thought the sinkhole was water until he was significantly closer to it.

Dr. Mihlbachler said the condition of the path with the sinkhole would be a safety hazard for path users if it were an official Academy trail. Thus, if it were an official trail, he would have reported the condition of the path to maintenance to get it repaired. He was the only Academy employee actually aware of the sinkhole before the accident and in fact, had photographed the sinkhole two weeks before Jim was injured. However, he did not report the sinkhole or to anyone else before the accident, because the trail management plan did not reference any asphalt-surfaced trails. There was no rule or regulation in the trail management plan or otherwise, that would have required fixing a hole on an unofficial path, such as the asphalt path. Dr. Mihlbachler also said the Academy’s trail management plan contained guidelines about what constitutes a safe trail for the users, and that “criteria would have applied in this situation [to the asphalt path] had I known that it was designed – . . . as a trail, yes.”

The Court held that Dr. Mihlbachler chose not to do anything about the sinkhole when he encountered it (other than to take its picture). His decision was based on his perception that it was not the Academy’s responsibility because he did not think people were using the path for recreational purposes. He “didn’t feel the Air Force Academy considered it to be a trail of any sort” and that the hole was thus unlikely to cause anyone harm.

The Court found the Academy unreasonably failed to exercise reasonable care to protect against a danger – the sinkhole on the path caused by erosion – of which it actually knew. Under the respondeat superior doctrine, “an employer or principal is liable for acts that its employee or agent commits on behalf of the employer or principal within the scope of the employment or agency… based on the theory that the employee acts on behalf of the employer when the employee is acting within the scope of his authority.” The evidence shows that Dr. Mihlbachler knew of the significant erosion problems in the immediate area of the path and its condition prior to Jim’s accident.

The RUA places the risk of injury for recreational activity upon the recreational user rather than the landowner subject to certain specifically enumerated exceptions to its limitations on landowner liability. One of these exceptions to liability is a landowner’s “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.”

The RUA does not define the terms “willful” or “malicious,” but the court concluded the phrase had its plain and ordinary meaning of “voluntarily, purposefully and with a conscious disregard for the consequences of the act”. Willfulness does not require that a government employee be consciously aware that his acts or omissions create danger or risk to the safety of the public. It was enough that the Academy knew that the asphalt path existed on its property and knew that persons used the path for recreational purposes, including bicycling, by invitation or with permission.

What’s more, the Court said, the Academy knew that people were using the path for recreational purposes yet chose not to communicate that to its agent, Dr. Mihlbachler, even though he played a safety role at the Academy in connection with his role as Trail Manager. Thus, the court concluded, Dr. Mihlbachler acted “voluntarily, intentionally, and with a conscious disregard for the consequences of the act” when he chose not to make the sinkhole a priority or to do anything to warn about it or guard against its danger.

Despite the immunity normally afforded by the RUA, the Air Force Academy was liable to Jim.

– Tom Root

Case of the Day – Tuesday, January 20, 2026

Posted on January 20, 2026 by TLRoot tagged.

SOMETIMES, DOING NOTHING IS AN OPTION

We’ve talked before about state recreational user acts, statutes adopted in almost every state that encourage landowners to permit recreational use of their undeveloped land. The notion goes that by shielding property owners from liability when Connie Klutz, out for an afternoon of bird-watching, blunders into a pool of quicksand, they will magnanimously open their lands for free to the litter, noise, and hubbub of the general public.

That’s the theory.

But sometimes, an RUA can ride to the rescue of a landowner who never intended that people traipse across his or her land. Why would that be? Imagine you live in Colorado. And why not? It’s a nice place, Rocky Mountain highs, nowadays from marijuana as much as from taking in the scenic splendor.

One day, some knucklehead ignores the “trespassers will” signs posted around your property, hikes through your fields, and falls in a gopher hole. It could happen, you know. His lawyer shouts, “negligence!” You respond, “I let him take the path that was just as fair, and having perhaps the better claim… Therefore, I am protected by the RUA.”

Your alternative to RUA protection is hardly as pretty. If you invited him onto your premises, and he was not a recreational user, you owed him “the highest duty of care.” Suppose he was a mere licensee, a person “who enters or remains on the land of another for the licensee’s own convenience or to advance his own interests, pursuant to the landowner’s permission or consent.” In that case, you still are liable if there is an “unreasonable failure” on your part to exercise reasonable care concerning dangers you created or failure to warn of hazards you did not create but which “are not ordinarily present on property of the type involved and of which the landowner actually knew.” Even if your clumsy hiker is simply a “trespasser,” a person who “enters or remains on the land of another without the landowner’s consent,” he may recover for damages you willfully or deliberately caused.

How much easier just to make anyone who gets hurt on your land a recreational user. Under Colorado’s RUA, “the owner of land who either directly or indirectly invites or permits, without charge, any person to use such property for recreational purposes” will not be responsible for “any injury to person or property… caused by an act or omission” of the landowner.

In today’s case, the Colorado landowner under the gun is the United States Air Force Academy. USAFA has a sprawling complex of academic buildings, airfields, athletic complexes, housing for support personnel, and a lot of undeveloped land, all nestled up against the Front Range. Within the 40 square miles or so of Academy land was a bike trail, ominously marked at the entrance with a sign prohibiting entrance. Another sign, put up by persons unknown but not removed by Air Force Academy folks, said, “Bicycle Path – No Motorized Vehicles.”

Jim Nelson, a guy who regularly ignored the “Entry Illegal” signs, managed to ride into a “large sinkhole” – what, Jim, you didn’t see it? – and racked himself up rather badly. At trial, he stuck it to USAFA to the tune of millions of dollars. The Tenth Circuit, however, had other ideas. Whether it invited Jim or not (and the Academy was sure it had not), he was a recreational user, and the Academy seemed to be as free as a falcon.

Whoever said, “Doing nothing is not an option?” Certainly not the Tenth Circuit.

Nelson v. United States, 827 F.3d 927 (10th Cir. 2016). Jim Nelson was a regular user of a bicycle path on property owned by the United States Air Force Academy. While riding in 2008, he struck a large sinkhole and severely injured himself.

Two signs stood near the path’s entrance. The first sign, erected by the Academy, informed visitors that entry was illegal without permission. The second sign, located closer to the path’s entrance and easier for bikers to read, stated, “Bicycle Path, No Motorized Vehicles.” The Academy did not erect the “Bicycle Path” sign, nor did anyone there know who did or when it was done. But the sign was displayed for at least as long as Mr. Nelson had been using the path.

A year before the accident, the Colorado Department of Transportation offered to remove the sign near the right-of-way on Interstate 25 where the highway crosses Academy property. The Academy, however, never responded to the email offer, and the sign remained in place until Mr. Nelson’s accident the following year. After the accident, the Academy closed the path.

Mr. Nelson sued the United States for his injuries. The district court found the Academy knew the path was used for recreational purposes such as jogging and biking, although USAFA considered bike path users trespassers on Academy land. Nonetheless, the Academy never confronted recreational users or prevented them from using the path. The district court also found that the Academy did not intend for the path to be a recreational trail open to the public.

Based on these findings, the district court held the Academy could not take advantage of the limitations on liability under the Colorado Recreational Use statute because the Academy had not intended to open the path for public recreational use. And since the Academy knew bikers were using the path and was aware of the sinkhole, it breached its duty of care by failing to repair the sinkhole or warn users of the risk.

Held: USAFA is entitled to rely on the Colorado Recreational Use Statute (CRS § 33-41-103). The U.S. Court of Appeals for the Tenth Circuit held that the Academy was shielded from Jim Nelson’s tort claims because it knew the bike path was being used by the public and took no steps to block such usage. Thus, for purposes of the statute, the Academy “indirectly permitted” Jim’s use for recreational purposes. The Court of Appeals said the RUA extends protection to any person the landowner “directly or indirectly invites or permits” to use the property for recreational purposes. Under Colorado law, “permission” is defined as “conduct that justified others in believing that the possessor of property is willing to have them enter if they want to do so.”

No one thought USAFA directly permitted use of the path – in fact, the Academy considered users of the bike path to be trespassers. But the Air Force Academy knew people used the path all the time, knew someone had placed an unauthorized sign at the start of the party, and never removed the sign or otherwise prevented its use. This conduct, the Court said, “can only be seen as indirectly permitting bikers such as Mr. Nelson to use the path for recreational purposes.

The Court said no “subjective intent requirement” was required under the RUA. In other words, you don’t have to intend to offer your land for free recreational use. It’s enough that you don’t stop people.

Here, the Court said, the Academy’s purposeful actions implicitly allowed or acquiesced in Mr. Nelson’s use of the path. USAFA’s knowledge that the path was used by the general public, combined with its knowledge of the sign and its refusal to remove it, was enough to demonstrate permission under the Act. The Court ruled, “Landowners are entitled to protection by knowingly permitting recreational use of their property. Under a plain reading of the statute, the Academy “indirectly permitted” Mr. Nelson’s use of the path through its conduct.”

Sounds like a sweet deal for the Zoomies, right? Just wait until tomorrow…

– Tom Root

Case of the Day – Martin Luther King, Jr., Day 2026

Posted on January 19, 2026 by TLRoot tagged.

SOME THINGS EVEN A COURT CAN’T DO

The majestic courage shown by the Selma marchers 50 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately cannot be undone by knuckleheads like today's plaintiff.

The courage shown by the 1965 Selma marchers 60 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately, cannot be undone by knuckleheads like today’s plaintiff.

For a country that was supposed to be sailing into a post-racial world after the election of President Obama in 2008, we’ve had a rough time of it in the last 18 years. In race relations, 21st century-style, there is the deadly serious (such as Ferguson, Chicago, Cleveland, Charleston, Minneapolis, and Brunswick, Georgia)– the merely reprehensible (University of Kentucky senior arrested after screaming racial slurs at black UK freshman) – the head-scratching (trees can be racist?), and of course a former and current President (the same person, by the way), who as recently as a year ago or so told the National Association of Black Journalists that he didn’t know Kamala Harris “was Black until a number of years ago when she happened to turn Black, and now, she wants to be known as Black. So, I don’t know, is she Indian or is she Black?”

This is also the guy who has proclaimed that he’s “been the best president for the Black population since Abraham Lincoln.”

That last declaration and exactly how he may have referred to the governance and economics of Haiti, El Salvador, and some countries in Africa are a suitable launching point for a trip into the absurd. The absurd is something we’ll look at today, on Dr. Martin Luther King’s birthday commemoration and the approximate anniversary of the orange President’s second inauguration.

Sigmund Freud was famously but questionably credited with having said, “Sometimes a cigar is just a cigar.” In today’s case, a matter of trespass to trees was somehow recast into a federal civil rights action by the plaintiff, who was a man with a litany of offenses committed against his ancestors which he wanted to redress.

Mr. Brewer apparently trespassed on Mr. Lance’s property and removed three trees. Rather than an appropriate trespass to trees action (with a request for treble damages) in South Carolina courts, Mr. Lance went for broke, suing Mr. Brewer for violation of his civil rights under 42 U.S.C. § 1983.

A § 1983 action is a powerful one, authorizing a federal court action to be brought against persons who, under color of state law, deprive another of his civil rights. It has been used against those who discriminate in housing, police officers who wrongly kill suspects, employment discrimination, and even in zoning decisions.

But § 1983 doesn’t do everything. Here, Mr. Lance argued that not only had Mr. Brewer falsely claimed to have the County’s permission to cut down the trees, but Mr. Brewer’s grandfather had defrauded Mr. Lance’s cousin in a land deal about 40 years before. When the Federal magistrate judge recommended dismissal of the § 1983 action, Mr. Lance objected, arguing rather ineloquently that ““GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction.”

Destruction was something the federal court was willing to risk, holding that no matter how it tried to construe Mr. Lance’s complaint, there just wasn’t a civil rights violation alleged. Of course, he was free to pursue his complaint in state court, and we assume he did so.

Lance v. Brewer, 2007 U.S. Dist. LEXIS 30247, 2007 WL 1219636 (D.S.C., Apr. 24, 2007). In late 2005 Defendant Brewer cut down three large trees and other tree limbs on Plaintiff Lance’s property without permission. Lance asserted that Brewer, who ran a business named Don’s Scrap Metal and Iron, sold these trees for profit but that he and his relatives did not receive any profit. Lance alleged that Brewer told him the county gave him permission to cut down the trees, but according to Lance, a county employee told him that Brewer did not have permission to cut down the trees. In addition to these claims, Lance argued that Brewer’s grandfather purchased the property adjoining his property forty to fifty years ago by “fooling” Lance’s cousin into selling 20 acres of river-front property for $200.00.

Lance alleges Brewer’s actions constitute racism and discrimination under 42 U.S.C § 1983, and he seeks $85,000.00 on behalf of the heirs of his cousin, Willie Lance. A U.S. Magistrate Judge recommended that Lance’s claim be dismissed. Lance disagreed and sought rejection of the Report & Recommendation.

Dr. King stood for equality and justice… not nonsense.

Held: Lance’s tree-cutting-as-civil-rights case was dismissed. The Court noted that Lance had objected to Report and Recommendation because “GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction. The United States Court has Federal Jurisdiction, because this is a Civil Rights Violation.” The Court said, “[t]he Plaintiff’s unsubstantiated statement that the Court has federal jurisdiction because this is a civil rights violation does not change the fact that even liberally construing the Plaintiff’s complaint, it fails to state a claim for a federal civil rights violation.” Here, Brewer is a private individual.

What’s more, Lance tried to state a claim pursuant to § 1981. The Court held that Lance has failed to allege an essential element of a § 1981 claim, that there is a contract or property law right enjoyed by white citizens but not by the Plaintiff, who is black. The Court concluded that – tree or no tree – no federal question was raised by Lance’s claim, and thus jurisdiction did not exist.

– Tom Root