Case of the Day – Thursday, July 3, 2025
A CAUTIONARY TALE FOR JULY 4TH
As millions of dollars worth of largely illegal fireworks are deflagrated in honor of America’s birthday, it’s a pretty good idea to consider the precautions people need to take in order to remain safe.
There’s a reason this was the adult refrain in “A Christmas Story …”
Today’s case reminds us of potential legal ramifications. The incident happened on New Year’s Day, not July 4th, but the risks are similar. A young kid in the neighbors’ yard with their permission … a bottle rocket set off by an adult guest of the neighbor … an eye lost.
The adult who lit the bottle rocket was liable, but inasmuch as she let a default judgment be entered against her, she probably had nothing. So the injured boy’s mother began prowling for a deep pocket. She claimed the homeowner was liable for several reasons, the most interesting of which was the doctrine of attractive nuisance.
Attractive nuisance balances two competing societal interests, that of protecting children (recognizing that most children will trespass on occasion and sometimes are injured when they do so) and landowners’ interest in not being unreasonably burdened to ensure that their property is safe for those children who trespass. Under the doctrine, a landowner who maintains dangerous instrumentalities on the premises easily accessible to children and likely to attract them in play, or permits dangerous conditions knowing that children are in the habit of using such things for play and who fails to exercise ordinary care to prevent children from playing with them, is liable for injuries to the children.
What is a “dangerous instrumentality?” Check out the top ten …
Brandon Keith fell into the 17% of kids who suffer eye injuries …
In today’s case, the landowner escaped liability because he had exercised ordinary care. But amidst the picnic food and beer and adults playing with fireworks, some kids are going to get hurt on July 4th, and some landowners who let it go on knowing that kids might be attracted — even without permission — may be liable.
I hope you have a safe Fourth of July.
Keith v. Peterson, 922 So.2d 4 (Ct.App. Miss. 2005). Young Brandon Keith was struck in the eye by a bottle rocket while playing with friends in the Petersons’ backyard.
The Petersons had held a New Year’s Eve party the night before, and some of the Petersons’ friends were picking up unused fireworks — which a few of the previous night’s partygoers had brought with them the night before — which were strewn around the yard. Brandon, who had attended the party because he was visiting his grandmother across the street, got permission to play in the Petersons’ yard from his grandmother as well as from Mrs. Peterson. While the children were playing hide and seek (and Brandon was hidden in the bushes), one of the people cleaning up the yard lit a bottle rocket and threw it into the air. The rocket ignited, flew across the yard and hit Brandon.
And it was “Let’s go, Brandon! To the emergency room!” When the paper dust settled and the rocket smoke cleared, Brandon lost an eye.
Mr. Peterson was on his way home from an errand at the time and didn’t know Brandon was in the yard. The woman who had lit the rocket had no idea Brandon was hidden in the bushes. Brandon’s mother sued Mae Langston, who had lit the rocket, and the Petersons. Mrs. Keith obtained a default judgment against Mae for $350,000, but the trial court granted summary judgment for the Petersons and dismissed the case against them.
Held: The trial court’s dismissal was upheld.
The Court of Appeals first considered whether Brandon was an “invitee” — one who enters the property of another in response to an express or implied invitation of the owner or occupant for their mutual benefit — or a “licensee” — who enters another’s property for his own benefit or pleasure — or a mere trespasser. A landowner owes the highest duty to an invitee, the duty to maintain his property in a reasonably safe condition, and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and open view. For a licensee or trespasser, on the other hand, a landowner owes only the duty to refrain from willfully or wantonly injuring him or her. Normally, the status of the plaintiff is a jury question, the Court said, but where the facts aren’t in dispute, the court can make the determination as a matter of law. In this case, young Brandon was on the Peterson property as a “licensee,” because he had the Petersons’ permission to be there and he was there for his own pleasure — to play with other children — rather than for the Petersons’ benefit. Because Brandon was a licensee, the Petersons only owed him a duty to refrain from willfully or wantonly injuring him.
Want the kids to enjoy some fireworks? Take them to a display put on by trained and licensed professionals. And have a great July 4th …
To breach that duty, the Court said, requires more than mere inadvertence or lack of attention. Instead, the landowner’s conduct must show conscious disregard of a known serious danger. Here, the Court ruled, the undisputed evidence showed the Petersons didn’t engage in wanton or willful conduct. The property owner was riding his bicycle towards his property when he saw children playing in his yard and two adults cleaning up fireworks, and it was at this time that Mr. Peterson saw one of the adults ignite the bottle rocket. He didn’t know that Brandon was one of the children playing on his property until he heard his scream, and Brandon testified that Mae Langston didn’t know that he was hiding behind hedges. And because the guests cleaning the yard weren’t paid employees, the doctrine of respondeat superior did not apply to make the Petersons liable.
Brandon’s mother argued that the doctrine of attractive nuisance applied to this action. The Court noted that the theory of attractive nuisance was that a landowner was subject to liability for physical harm to children trespassing thereon if the property owner failed to exercise ordinary care in maintaining the dangerous instrumentality which attracted the children. That didn’t apply here, the Court said, because the record showed that Mr. Peterson exercised ordinary care, he was not liable. There was no testimony that he had allowed children to ignite the remaining fireworks without supervision. In fact, he had two adults removing fireworks from his yard, and he was not on his property at the time of the incident and was unaware of licensee Brandon’s presence on his property.
– Tom Root
Case of the Day – Wednesday, July 2, 2025
WHOSE TREES ARE THEY?
I was writing about your tree lawn recently, that strip of grass between the sidewalk and street. With the big parade tomorrow, you might be anticipating (or fearing) dozens of strangers in their lawn chairs squatting on your strip of domain.
But is it your domain? No issue of property ownership may be more misunderstood than the question of who owns the tree lawn, sometimes called the boulevard lawn, that strip of land between your front sidewalk and the street.
The confusion was illustrated recently by our reader Joel, who wanted the city to remove a dead tree on his tree lawn. He had always just understood that the tree lawn wasn’t his and that he couldn’t cut or trim the trees growing there. We straightened him out, but a lot of uncertainty remains.
In today’s case, homeowners Gene and Joan Foote knew the tree lawn was theirs, but their failure to appreciate the limits of their rights led to a suit against the city. It seems that the city was improving the street, and its plan included the removal of four trees from the Foote tree lawn. The homeowners demanded compensation, arguing that the city’s removal of the beautiful trees amounts to a “taking” of property under the 5th Amendment, a “taking” for which they must be paid. A trial court agreed with them.
The Minnesota Supreme Court reversed the decision. It explained that the Footes, like any owners, were entitled to use all of their property right to the centerline of the street. However, the property was owned subject to a public easement (that’s why a deed always says “subject to all legal highways, easements and other restrictions of record”). In other words, the owner’s use of the land had to yield to the public easement of the highway.
Here, the city was merely using more of its highway right-of-way by expanding the street. As long as it remained within the bounds of its easement — which usually extends beyond pavement for a distance — the city could remove trees and other of the owner’s property to the extent needed for the public’s enjoyment of the easement. The removal of the trees let the public enjoy the easement, and no money was due to the property owner because of it.
Some road-widening projects can get quite close to buildings. Be sure to check on the width of the highway easement before you build.
How wide is the right-of-way? It depends on the state you live in and the size of the street. If you have questions, you could check with your local government’s engineering department. Or ask your lawyer.
Lawyers love to answer questions. Usually for a fee.
Foote v. City of Crosby, 306 N.W.2d 883 (Supreme Court of Minn. 1981). Gene and Joan Foote owned a home in the City of Crosby. The platted right-of-way of the street in front of the home, Cross Avenue, was 80 feet wide and extended to approximately 6 inches from the front steps of the house.
The center 32 feet of the right-of-way was paved. Next to the pavement is a 10-foot wide grassy boulevard, and then a 4-foot sidewalk. On the boulevard were four large healthy elm trees which had been maintained by the Footes. Although the trees had cracked and heaved the sidewalk, there had been no complaints that the trees impeded foot travel, nor had the trees interfered with motorized travel.
The city began an extensive municipal improvement project prompted by the need for storm sewers, including a new lateral line under Cross Avenue. To provide a proper grade for drainage, Cross Avenue would be torn up entirely, a plan which called for the removal of the four trees, because any root cutting necessary to accommodate the change in grade and repositioning of the curb and sidewalk would likely kill them. The Footes sued for an injunction, arguing the city couldn’t cut the trees without paying them compensation. The district court granted the injunction, and the city appealed.
Held: The injunction was dissolved. The Court observed that the owner of property abutting a right-of-way for public travel had the right to use his half of the roadway in any manner compatible with the use by the public of its easement. Any encroachment on the public right-of-way must be clearly an obstruction to the public easement before the municipality may remove it without an adjudication that it was in fact an obstruction.
The Footes were not entitled to compensation for the removal of trees within the public right-of-way, the Court ruled. Although the Footes had a property right in the trees, because the taking was pursuant to a project which was a proper exercise of police power and encompassed a public purpose, and because removal of trees was necessary to the implementation of the project, the Footes could not recover anything for their removal. After all, the Court said, the removal of the boulevard trees within the platted right-of-way was necessary for the street improvement project, and if not removed, the trees would clearly obstruct the public’s easement of travel.
– Tom Root
Case of the Day – Tuesday, July 1, 2025
I CHANGED MY MIND… I GUESS
Doug Van Dyke had big plans for getting folks back to nature. He wanted to build a nature trail along a ravine that split his property and that of his waffling neighbor, Eunice North. People could enjoy the birds, the babbling brook, the scent of pine… that kind of thing.
If you ever wonder whether it’s a good idea to get agreements in writing, Doug’s $70,000 mistake will settle that question for you. Because Doug’s nature path would meander a bit onto Eunice’s side of the ravine, he told her about his plans for the trail. Eunice, who admitted that she really had no idea what Doug was talking about, said she just “shrugged my shoulders” and replied that “I guess it would be okay.”
To Doug, that was like the green flag at Indy. But little did he know that Eunice promptly began to fret about her confused acquiescence. She had trouble sleeping for her worry, and finally asked a friend about the plan. Her friend told Eunice the trail idea was a mistake. Armed with this advice, Eunice said, she reneged. She claimed she told Doug that she didn’t want him around.
“No probalo,” Doug – who had no intention at all of honoring Eunice’s change-of-heart – allegedly responded. Regardless of his actual intentions, Doug promised Eunice that he “would go to a different plan.”
That different plan seems to have involved having his contractor run the bulldozers at full throttle instead of half throttle. By the time the diesel fumes cleared, 20 of Eunice’s trees had been ground under Caterpillar treads and the trail encroached on her land.
Eunice sued Doug for trespass, loss of lateral support, and loss of trees. The jury awarded Eunice $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim. It mattered little that Doug and the contractor both told a different story, the bulldozer operator testifying that Eunice had agreed to Doug’s plan. The jury believed Eunice.
Juries do that, often buying one side of the story and not the other, many times against common sense. We don’t know that that happened here, but it sure did not help Doug that he had not bothered to have the property boundaries surveyed before the ‘dozers started dozing.
Much of Doug’s case in the appeals court focused on damages. The jury agreed that Doug’s dozing had made Eunice’s side of the ravine unstable. Eunice’s expert testified that there were three ways to repair the damage, but none of the trees would restore the ravine to its pristine state. Doug argued that said because the land could not be repaired to the way it was before the bulldozers rolled through, then the diminution of the fair market value of the ravine was all that mattered.
Not so, the court said. The law does not require that the evidence show that the damage can be repaired so as to make the property as good as new. While it is a general rule of Iowa law that the cost to repair property is the fair and reasonable cost of repair not to exceed the value of the property immediately prior to the loss or damage, all Eunice was required to do was to establish a fair and reasonable cost to fix things up in order to arrest further deterioration and make the place as good as it can be made. In this case, Eunice showed that she had three means of stabilizing the steep bank after Doug’s earth-moving frolic and only one of those made any sense. She established the cost of that repair, and the value of the property before the damage.
Because the damages did not exceed her expert’s $129,000 repair price tag, it was clear the jury fulfilled its function in weighing the evidence.
Next time, Doug, get the landowner’s OK in writing. Call a surveyor. Stake the property boundaries. Surely that’s cheaper than $71,000.
North v. Van Dyke, Case No. 16-0165 908 N.W.2d 880 (Ct.App. Iowa, 2017). Douglas Van Dyke hired Heck’s Dozer, Inc., to build a trail along a ravine between his property and adjacent land owned by Eunice North. Twenty of North’s trees were removed during the trail’s construction, and a portion of the completed trail encroached upon North’s property. Doug said Eunice gave him permission. Eunice said she initially sort of equivocated, but later told Doug in no uncertain terms that he was to stay off her land.
Doug said he would do so, but he never had the land surveyed or staked, and his guess as to the location of the property line was by guess and by gosh. Doug’s contractor said he met with Eunice, and she approved the plans. Eunice said she had never met the contractor.
Eunice testified that after she told Doug to steer clear of her property, she heard a “‘loud commotion.’ Standing on her deck, she saw ‘two pieces of heavy equipment’ below and ‘trees… flying.’ She decided not to go into the ravine to check on the commotion because she was ‘afraid’ she would get ‘hit with something,’ and she had physical difficulties getting ‘down there.’ Suspicious of an encroachment on her land, she commissioned a survey. The surveyor confirmed her fears.”
Eunice sued Doug for trespass, loss of lateral support, and loss of trees. The jury awarded her damages of $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim. Doug appealed.
Held: Eunice amply proved that Doug should pay treble damages under Iowa Code § 658.4 (2013). The statute requires the damage to trees be committed willfully or without reasonable excuse.” The term “willfully” has been characterized as an intentional and deliberate act without regard to the rights of others. Here, the Court of Appeals said, a reasonable juror could have believed that Eunice said “no” the jurors could have found Van Dyke “acted… without reasonable excuse.”
The jury additionally could have found that Doug’s failure to commission a survey before building the trail denied him any reasonable excuse for the trespass. The testimony established that Doug relied on an “old fence,” “old posts,” a “shed,” and a “roofline” to gauge the boundary.
The measure of damages is the cost of repair, as long as that cost does not exceed the value of the property prior to the damage. Doug complained that because Eunice’s expert testified only that the continued deterioration of the property could be stopped by stabilizing the steep bank, she was not able to show that the property could be repaired to its original state.
The Court of Appeals held that nothing requires that the repair estimate be enough to restore the land to its state before the damage. As long as Eunice provided evidence of the fair market value of the land before and after the damage, and a repair cost that is less than the value of the place before the damage – which she did – she met her obligation. Here, the damages awarded by the jury were higher than Doug’s estimate of $2,500.00 to fix it, but well below Eunice’s estimate of $127,000. Plus, the jury’s $50,000 award for trespass and lateral support was well below Eunice’s evidence that the land was worth $250,000.
The damage to the trees was assessed separately, with the value of the lost timber found to be $6,700, trebled to $20,100.
– Tom Root
Case of the Day – Monday, June 30, 2025
LET’S BE CAREFUL OUT THERE
Summer has officially begun, and it all feels so… so comfortable, like a pair of old shoes. Begun? June is gone already.
Yesterday, my bride and I wandered through Vermilion, Ohio, for some ice cream at Dairy Dock. Tourists were everywhere, the cottages sitting along the Lake Erie shoreline full, boats in and out of the marinas. Hot fun in the summertime, as Sly puts it.
And just for a moment, I felt like that old twinge, a fear really, that summer days are already running through my fingers like the sands of an hourglass. But to all those folks who complained in May about the cold, wet weather… I hope you’re happy now. It’s hot and muggy and bright… perfect for stopping by the old swimming hole, a place where my friends and I had a lot of fun (back when we didn’t worry about how we looked in a swimsuit, if we bothered to wear one at all).
The old swimming hole. Where we had a lot of fun. And, sadly, a place where tragic things can happen.
We must make an extra effort to be caerfull careful. Especially with July 4th upon us, this might be a good time to consider due care, that is, our duty of care to others.
In a negligence action, a plaintiff generally has to show that (1) the defendant had a duty of care in relation to the plaintiff, (2) the defendant failed to conform its conduct to the requisite standard of care, and (3) an injury to the plaintiff was proximately caused by the failure.
That’s what “fisheye” is all about: Do you really want to be eating food that’s staring back at you?
The duty of care is a moving target, depending to a large extent on the relationship of a defendant to the plaintiff. If someone delivering your double-anchovy pizza and atomic wings falls into an open hole in your front yard, the law treats your liability a whole lot differently than if, say, a thief sneaking around at night trying to steal your garden troll statue falls into the same hole. (But even if the law doesn’t wonder, we’re puzzled that you’d order a double-anchovy pizza).
In today’s case, a young man was paralyzed for life when he dove into the lake at his parents’ house. He had made the same dive countless times before, but the defendant in the case — the non-profit corporation that owned the lake — had recently installed a dredge pipe underwater near the shore. The pipe apparently was just below the surface of the lake.
The lake’s owner argued that the young man was merely a licensee, not an invitee. The difference was crucial because a licensee pretty much takes the property in the condition he or she finds it. The trial court agreed that the plaintiff was much more than that, and after a jury trial, the young man was awarded $1 million (when that was still a lot of money).
The appellate court looked at the corporate purpose of the non-profit lake owner, as well as the terms under which it acquired the lake from the public utility that had owned it previously. Both required that the lake be maintained for public purposes, despite being ringed with private homes, and that evidence convinced the Court of Appeals that the young man wasn’t just someone who was using the lake with the permission of the defendant non-profit corporation. Instead, he was an invitee, someone to whom an invitation had been extended to enter or remain on land for a purpose for which the land was being held open to the public. As such, the landowner had a much higher duty of care to the young swimmer, a duty it violated by not being more careful in installing and marking the dredge pipe.
Not all shallow water is so well labeled.
Shafer & Freeman Lakes Environmental Conservation Corp. v. Stichnoth, 877 N.E.2d 475 (Ct.App.Ind., 2007). Twenty-six-year-old Justin Stichnoth was visiting his parents at their house located on Lake Shafer. During a conversation that day, Justin’s father, Kerry, told Justin about a dredge pipe that Shafer & Freeman had installed in the channel near their dock. Kerry explained that recently he had gotten his boat “hung up” on the dredge pipe. Shortly thereafter, Justin took a running dive off of his parents’ dock into the channel, something he had done often over the years. Justin struck his head on the dredge pipe, which was located on the channel floor about 17 feet from the dock. Justin was left a paraplegic. He sued Shafer & Freeman, alleging that the firm’s negligence caused his injuries because it didn’t warn that there was a pipe underwater, it didn’t mark the pipe so that it would be visible to users of the lake, and it didn’t use reasonable care in dredging the lake.
Shafer & Freeman denied the allegations of negligence. Later, it filed a motion for summary judgment on the issue of whether Justin was a licensee of Shafer & Freeman. The trial court denied it, and a jury found it liable to Justin, awarding $1 million to the injured plaintiff. Shafer & Freeman appealed.
Be careful when diving into unfamiliar water.
Held: Justin was an invitee. Indiana law holds that a person entering the land of another comes upon the land either as an invitee, licensee, or trespasser. The person’s status on the land defines the nature of the duty owed by the landowner to the visitor. Licensees have a license to use the land and are privileged to enter or remain on the land by virtue of the permission of the owner or occupier, but they take the premises as they find them. Invitees, on the other hand, are owed a much higher duty of care. The decisive factor with regard to whether a landowner has extended an “invitation” or “permission” is the interpretation that a reasonable man would put upon the owner’s words and actions, given all of the surrounding circumstances. Here, the Court found, the lake was held open to the public, even though it was surrounded by private property, and thus Justin — who dove off a dock and struck his head on a dredge pipe located on the channel floor — was an invitee rather than a licensee for purposes of personal injury action. The Court held that the articles of incorporation of Shafer & Freeman, the non-profit corporation that owned the lake, provided that the corporation would protect and enhance the water quality of the lake in order to facilitate public recreational use and ensure continued public access.
What’s more, the Court said, the agreement by which Shafer & Freeman acquired the title from the electrical utility, provided that Shafer & Freeman would hold the lake for public, charitable, recreational, conservation, and environmental purposes. It is not enough, to hold land open to the public, that the public at large is permitted to enter at will upon the land for their own purposes. As in other instances of invitation, the Court said, there must be some inducement or encouragement to enter, some conduct indicating that the premises are provided and intended for public entry and use and that the public will not merely be tolerated, but is expected and desired to come. When a landowner lets local boys play basketball on his vacant lot they are licensees only. If he installs playground equipment and posts a sign saying that the lot is open and free to all children, there is then a public invitation, and those who enter in response to it are invitees.
– Tom Root
Case of the Day – Friday, June 27, 2025
HOW MUCH IS ENOUGH?
A eucalyptus tree, similar to the one that offended Ms. Cannon.
There was a time, back when people of grit populated the land, that a landowner only had one choice when his neighbor’s trees encroached – to cut ‘em back. The Massachusetts Rule was the coin of the realm: if you didn’t like your neighbor’s tree overhanging your eaves, or its roots wrapping around your sewer line, you only had one option. The courts didn’t want to hear about it. Self-reliance was what it was all about.
Then along came the Hawaii Rule, which suggested that a naturally growing tree could be or could become a nuisance, and that an aggrieved landowner could sue for an order requiring its removal. One rule does not necessarily negate the other. So when does one oil up the chainsaw, and when does one fire up the word processor?
The Massachusetts Rule is, generally speaking, a blunt instrument. It’s one thing to cut away branches that pose a threat (or even an inconvenience) to your property. But what if cutting a limb back to the property line leaves a 15-foot leafless stub extending from the branch to the boundary. That’s not necessarily according to ANSI Standard A-300, but on the other hand, you don’t have the right to trim it properly unless your neighbor consents to you coming onto his or her land to do so.
Or, more dangerously, what if you cut back roots to the extent that the tree loses too much subsurface support, and falls on your neighbor’s new Bugatti Chiron? Are you liable? After all, you did no more than what the Massachusetts Rule permitted you to do.
The Hawaii Rule, on the other hand, is Doug Lewellyn’s dream. What an All-American solution – let’s sue! When is harm sensible? When your foundation walls collapse? When a dead branch falls on your Bugatti? When leaves clog the filter on your swimming pool? How much harm is enough?
Joan Cannon lived next to Lamar Dunn. Joan was unhappy with the roots from the Dunns’ eucalyptus tree, which were encroaching underground onto her land, as roots are wont to do. After all, a tree will quite often send roots out 35 feet or more from the base of the trunk, and the root system has little regard for some lines drawn on a recorder’s map.
We’re not sure why Joan was so exercised. Maybe she was naturally crotchety. Perhaps she was unusually territorial. Maybe her neighbor had a nice Bugatti, while Joan drove a Yugo. What we can be sure of is that the eucalyptus roots weren’t really causing any harm.
Sometimes encroaching roots can be an inconvenience.
That didn’t stop Joan from suing the Dunns. The trial court denied an award of any damages and refused to order Lamar the appellee to remove the offending roots and tree. Joan appealed.
The Court of Appeals considered the classic Restatement of the Law trespass approach, which held simply that if a neighbor owns something that trespasses, he or she has to remove it if there is a duty to remove it, regardless of whether it causes harm or not. That’s the rub, the court said. When does such a duty arise?
The court found guidance in the Restatement on nuisance and held that a duty to remove offending branches or roots arose when some actual and sensible or substantial damage has been sustained. Joan’s general objection to the unseen eucalyptus roots did not equate to harm. Thus, the roots could remain.
Cannon v. Dunn, 145 Ariz. 115, 700 P.2d 502 (Ariz.App. Div. 2 1985). This case involves the liability of Lamar Dunn, an adjoining landowner, for roots from a eucalyptus tree that invaded the subsurface of land belonging to his neighbor, Joan Cannon. The trial court found that the roots had caused no actual damage, and denied an award ordering the Dunns to remove the offending roots and tree.
Joan appealed.
Held: Dunn did not have to remove the roots. The Court of Appeals rejected Cannon’s argument that it should apply the Restatement (Second) of Torts § 158 (1965), which stated that “one is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other if he intentionally… fails to remove from the land a thing which he is under a duty to remove.”
The Court said that it was “obvious that one must first determine whether there is a duty to remove the object and that in this case § 158(c) really begs the question.” More to the point, the Court observed, was the Restatement (Second) of Torts § 840 (on nuisances), which held that a possessor of land is not liable to his adjoining landowner for a nuisance resulting solely from a natural condition of the land.
Ms. Cannon could not prove any damages flowing from the alleged encroachment … unlike this guy.
The Court paid lip service to the Massachusetts Rule, noting that Arizona law permitted a “landowner who sustains an injury by the branches or roots of a tree or plant on adjoining land intruding into his domain, regardless of their non-poisonous character may, without notice, cut off the offending branches or roots at the property line.” At the injured landowner’s expense, of course.
But when some actual and sensible or substantial damage has been sustained, the Court said, the injured landowner may maintain a nuisance action for abatement of the nuisance, and compel the removal of the branches or roots at the tree owner’s expense. However, where no injury has been sustained, no lawsuit be brought for either an injunction or damages.
– Tom Root
Case of the Day – Thursday, June 26, 2025
THE COURT CHANNELS SHAKESPEARE
Midsummer’s Night fell last weekend, making me feel a little Puckish. So I thought we’d examine two neighbors, neither of whom reacted thoughtfully to a dangerous tree. “Oh, what fools these mortals be!” Midsummer Night’s Dream, Act III, Scene 2.
Traditionally, the Massachusetts Rule – which could be summarized as “I don’t owe you nuthin’ – held that a landowner had no liability to his neighbor for harm done by overhanging branches and encroaching root systems. If the neighbor didn’t like the mess, he or she could trim away the offending branches or roots up to the property line. The courts simply didn’t want to hear about it.
However, courts had traditionally held an urban landowner to a higher standard of care when the people being protected were passing motorists on a public highway. In those cases, an urban landowner was obligated to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.
In today’s case, Lois Lockhart had a decaying tree on her property. Neighbor Carl Mahurin complained about it, primarily because one of the branches was overhanging his property. But Lois did nothing. Neither did Carl – unless belly-aching counts as putting forth an effort.
Finally, the branch broke off and hit Carl, who was standing beneath it. You knew that had to happen, or else why would we be telling you this story? Being injured – and a little piqued that Lois had ignored his entreaties for so long – Carl sued. (You knew that would happen, too.)
Lois tried to get the case thrown out of trial court. She pointed out that Carl had nuthin’ coming from her. The traditional rule – read “Massachusetts Rule” here – dictated that she had no duty to protect Carl from the natural condition of her tree.
But as the great bard once wrote, “I do perceive here a divided duty.” Othello, Act I, Scene 3. And so did the trial court. It was troubled that Lockhart’s duty to strangers passing by in their Hudsons and Desotos was greater than to her neighbor. That seems divided, and irrationally so.
Lois said, “Heaven is my judge, not I for love and duty, But seeming so, for my peculiar end.” Othello, Act I, Scene 1. The trial court said that might be so, but it nevertheless sent the case to the Court of Appeals for the appellate court’s opinion as to her duty.
William Shakespeare foresaw the problems with the traditional liability rule urged by Ms. Lockhart hundreds of years ago. “Wondrous strange!” indeed.
The appellate panel said, “O day and night, but this is wondrous strange!” Hamlet, Act 1, Scene 5. It could see no reason for the disparate treatment, either. Certainly, just as Lockhart owed a duty to Mordred and Mildred Motorist, she must owe the same duty to her neighbor, Carl. However, the Court of Appeals did allow that Mr. Mahurin could have entered Ms. Lockhart’s place and cut the tree down itself. So he might be contributorily negligent. Likewise, could he have been a knucklehead for standing under a tree he had complained was dangerous?
To Lockhart, the Court said, “There are more things in heaven and earth, Lois, than are dreamt of in your philosophy.” Hamlet, Act 1, Scene 5. Such as… a single duty owed by a landowner to both travelers passing on the road and her next-door neighbor. It sent the case back to trial.
Mahurin v. Lockhart, 71 Ill.App.3d 691, 390 N.E.2d 523 (Ill.App. 5 Dist. 1979). Plaintiff Carl Mahurin brought this action to recover damages for personal injuries he suffered when a dead branch extending over his property fell from a tree belonging to defendant Lois Lockhart, an adjoining landowner, and struck him. In his complaint, Mahurin alleged that Lockhart failed to prune the tree or take other necessary precautions after he warned her of the condition of the tree and the dangers it posed.
Lockhart moved to dismiss the complaint, arguing that a landowner is not liable for physical harm to others outside of her land caused by a natural condition. The trial court denied the motion to dismiss, certified that the question of law raised in Lockhart’s motion presented substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation.
Held: The Court held that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.
The narrow issue before the court was to determine the extent, if any, of the duty that a landowner in a residential area owes to persons outside of his premises to remedy some defective or unsound condition of a tree upon his land when the tree and its condition were of a purely natural origin. Mahurin urged the Court to adopt the traditional rule set forth in section 363 of the Restatement (Second) of Torts. This section provided that neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land. However, if the landowner was in an urban area, he was subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”
The traditional rule applied even though the landowner is aware of the dangerous natural condition and the expense necessary to remedy the condition is slight.
The Court noted that the traditional rule of non-liability developed at a time when land was mostly unsettled and uncultivated. The landowner – unable to keep a daily account of and remedy all of the dangerous conditions arising out of purely natural causes – was therefore shielded from liability out of necessity.
But, the Court of Appeals asked, if Carl knew the tree was dangerous, why was he standing under it? Duh, Carl …
The Court disagreed that the duty an urban landowner owed to a neighbor should be less than that owed to people passing in cars and trucks. It thus ruled that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.”
Therefore, Lockhart’s duty to Mahurin should “be defined using the ordinary rules of negligence. It is, therefore, appropriate for the trier of fact to consider… such factors as the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented” in resolving the issue of liability.
The Court noted Lockhart’s argument that Mahurin was contributorily negligent because he stood under a tree that he, by his own admission, knew was dying and dangerous. The Court noted that the Restatement provided that a landowner is privileged to enter upon a neighbor’s land to abate a condition thereon which constitutes a private nuisance. “While this privilege alone does not establish the contributory negligence of plaintiff, it could be considered by the jury in resolving this issue.”
The Court remanded the case for trial, using the standards it had adopted.
Tom Root
Tree and Neighbor Law For Homeowners and Professionals 
