Case of the Day – Monday, December 29, 2025

Posted on December 29, 2025 by TLRoot tagged.

SUED FOR NOT HAVING LAWS AGAINST SUCH A THING

Looking for the deep pocket is a time-honored tradition in personal injury law. Today’s case, dating from 1931, proves that point.

The first rule of plaintiffs’ advocacy … look for the deep pockets.

A young boy and his uncle were riding in a one-horse open wagon down the center of a public street. A homeowner had hired a couple of guys to cut down a tree along the street. For whatever reason (but probably because the workers were knuckleheads), the tree fell onto the wagon, injuring the occupants.

“Straightforward enough,” you say, “so where’s the catch?” It’s here: before cutting the tree, the contractors went to the mayor to ask about permits. The mayor, a dentist by trade, advised that there were no teeth in the local ordinances and no permit was needed to cut down a tree.

He was right, not that that mattered much. The injured boy’s guardian sued the city for not making sure that the tree cutter cut the tree down safely. Reduced to its essence, the claim seemed to say the City had money, and no other defendant did, so it must be liable somehow.

A jury agreed, but the Supreme Court reversed.

There can be little doubt that the City was sued in this early Depression-era tale, because the City was the only party likely to be able to pay a judgment. Finding someone with money is always a good idea in a personal injury case, but there are technicalities – such as the party with money should somehow be liable to the victim – that should be observed.

Here, the theory seemed to be that the City should have had laws against unsafe tree removal, and its failure to have such ordinances on the books somehow made it responsible for the plaintiff’s injury.

Armstrong v. Waffle, 236 N.W. 507 (Supreme Court, Iowa, 1931). Three-year-old Biff Armstrong sustained personal injuries resulting from a homeowner’s removal of a tree in front of his house along a city roadway. The contractor hired to remove the tree asked the mayor of the City of Marion if a permit was necessary to remove the tree. The mayor said that he knew of no permit that was needed to remove the tree, and there was no ordinance in the City of Marion governing the cutting and removal of trees.

The contractor cut the branches from the tree until he was left with a stump of some 14 or 15 feet in height. Just before the Neffs were ready to saw the tree off, and while they were working with the branches, Joe Armstrong, an uncle of the plaintiff, a drayman by occupation, drove north in a dump wagon. Joe had Reuben, a child of about 3 1/2 years old, on the seat of the wagon with him. The tree suddenly fell across the front of the wagon and crushed him and the child, breaking Joe’s leg and severely injuring the boy.

The boy’s guardian sued the landowner, the contractor and the City of Marion. The jury found in favor of the plaintiff against the City, and the City appealed.

Held: The Court found the contractor to be negligent in felling the tree, but the City of Marion was not liable.

The Court held that the City’s liability was restricted to keeping the streets open and in repair and free from nuisance. Armstrong did not allege any nuisance existed in this case, nor did he claim that the City failed in its duty in not barring travel on the street or otherwise warning him of the danger incident to the removal of the tree.

The City alleged that the claim against it pertained to a governmental function or duties of the City for the breach of which the City is not liable. The City contended that its duty related only to construction, maintenance and repair of the street and that a municipality cannot be held liable for failure to protect citizens against actions occurring on its streets for reasons other than defects therein or by reason of a nuisance.

A municipality does not guarantee its citizens against all causalities incident to humanity, and cannot be called upon to compensate a party for its inability to protect against all accidents and misfortunes. There was no ordinance in the City regulating or prohibiting the removal of the tree. The City had a right to assume that the tree’s owner and his agents would exercise a proper degree of care to prevent injury to people on the street at the moment the tree fell.

– Tom Root

Case of the Day – Friday, December 26, 2025

Posted on December 26, 2025 by TLRoot tagged.

WRONGFUL TREES

For all of the Latin phrases, hidebound traditions, and libraries full of precedent, the law at its essence is nothing more than a codification of policies generally accepted by society. The law doesn’t always get it right – some laws aren’t carefully drafted, others do exactly what the legislature intended but pursue foolish or even repugnant policies – but by and large, the law tries to lay out rules for conduct based on policies generally accepted to be important.

Keeping an eye on the prize – the societal goals to be achieved – often helps courts from going overboard. It’s how the camel’s nose can be allowed into the tent without getting the whole camel in the process.

A good example of this is the “wrongful life” lawsuit. States all allow a “wrongful death” action, in which the survivors of someone killed, say, in a car accident or from medical malpractice sue for damages. This makes good sense. But in the last decade or so, some “wrongful life” suits have been brought, where – for example – a physician misdiagnoses and tells prospective parents that their fetus is healthy, but the doctor is wrong. The child is born with severe birth defects. The “wrongful life” suit claims that but for the physician’s negligence, the child would have been aborted.

Very few courts have permitted such a lawsuit for several very good public policy reasons. The first is that society does not recognize, as a matter of policy, that anyone is better off not having been born, no matter how severe the burdens of congenital disability. Second, the whole idea of tort law is to place the injured party in the same position as he or she would have been in had the negligence not occurred. But for the negligence, the injured party wouldn’t have been born. What can be done to put a living plaintiff in that position, or, for that matter, to compensate for having been born instead of never being?

And what would have made Ms. Lewis happy? Perhaps if the Krussels had only clearcut their property ...

Just what would have made Ms. Lewis happy? Perhaps if the Krussels had clearcut their property …

All right, that’s pretty heady stuff, but what does that have to do with tree law? Simply this: in today’s case, the plaintiff, Ms. Lewis, suffered from having a tree belonging to her neighbors Gary and Nancy Krussel fall on her house. Her suit simply claims: the tree fell on her house; the neighbors knew they had a tree; therefore, the tree was a nuisance; and the neighbors were negligent in failing to keep the tree from falling on the house. There was no evidence that the Krussels had any inkling this particular hemlock was going to fall. There was no evidence any reasonable person would have had such an inkling. In fact, there was no evidence that the tree was diseased or damaged. Reduced to its essence, Lewis’s claim was that the tree existed and the tree later fell, and those facts made it a nuisance. The tree was alive, the argument seems to say, and that fact wronged Ms. Lewis.

Fortunately, the Washington state courts made short work of this claim. Ms. Lewis was trying to advance a negligence claim as a nuisance claim, probably because she had no evidence of negligence. But, the courts ruled, public policy was not ready to declare a tree a nuisance merely because it was growing, nor was it prepared to hold that property owners were liable for what became of any naturally-growing, healthy trees on their land.

Without keeping one eye on public policy, the courts’ development of the law might go like this: First, landowners are responsible for damage caused by trees on their property that are diseased or damaged, and about which condition they are actually aware or reasonably ought to be aware. The next step would be for the courts to rule that owners must inspect their trees to avoid liability. Finally, landowners would be strictly liable for any damage caused by their trees, whether they were aware of a problem with the trees or not.

Largely, the law has stopped short of such a draconian rule, because the courts recognize that public policy favors the natural growth of trees, and eschews requiring property owners to devote substantial time and money to inspect trees, where there is no concomitant benefit to the public. By and large, courts have enough policy sense to let the camel’s nose into the tent while keeping the rest of the dromedary outside.

It is this kind of analysis that is illustrated in today’s case.

Lewis v. Krussel, 101 Wash.App. 178, 2 P.3d 486 (Ct.App. Wash. 2000). During a windstorm, two large healthy hemlock trees fell on Dawn Lewis’s house. She sued Gary and Nancy Krussel, who owned the property on which the trees had been growing.

Krussel acknowledged that windstorms had knocked down other trees on his property and other properties nearby in previous years. About a week after the windstorm at issue here, another windstorm knocked a tree onto his mother’s mobile home. But the trees that damaged the Lewis house were natural growth, and Krussel had no reason to believe that they were any more dangerous than any other trees on his property under normal conditions. After the damage to the Lewis house, Krussel cut down other hemlock trees located near his house upon the recommendation of the local utility district.

After Lewis sued for nuisance and negligence, Krussel moved for summary judgment. He supported the motion with evidence from a professional forester who inspected the stump of one of the fallen trees and found no evidence of rot. The forester concluded the tree that fell on the Lewis house was no more dangerous than any other tree standing on the Krussels’ property, and there was no way for the Krusselses to determine beforehand whether any one of their trees would fall over. The trial court dismissed the Lewises’ claim, and Lewis appealed.

Held: The appeals court upheld the dismissal of Lewis’s claim.

Sure Ms. Lewis’s house was crushed … but gravity did not turn the healthy tree that toppled onto her roof into a nuisance.

A homeowner is not obligated to remove healthy trees because they might topple in a storm. The Court of Appeals said that just because a negligence claim was disguised as a nuisance suit didn’t mean that the trial court had to consider it as such. Instead, in situations where the alleged nuisance is a result of what is claimed to be negligent conduct, the rules of negligence are applied.

The elements of a negligence cause of action, of course, are (1) the existence of a duty to the plaintiff, (2) a breach of the duty, and (3) injury to the plaintiff flowing from the breach of duty. An owner of property located in an urban or residential area who has actual or constructive knowledge of defects affecting his or her trees has a duty to take corrective action. However, the same is not the case when the tree is healthy. In that case, the owner does not have a duty to remove healthy trees merely because the wind might knock them down.

In this case, the Court agreed, there was no evidence that Krussel had any reason to believe that the hemlock trees posed a hazard, and a professional forester who had inspected the stump of the fallen tree had found that the tree was free of defects. The mere possibility of harm does not mean the probability of harm.

– Tom Root

Christmas Day 2025

Posted on December 25, 2025 by TLRoot

Case of the Day – Wednesday, December 24, 2025

Posted on December 24, 2025 by TLRoot tagged.

We’re out until Friday, December 26th, watching early and inconsequential bowl games.

Our turkey, covered with bacon, is being cooked on the grill again this year. Tradition tastes so good…

No heavy lifting for today (unless perhaps a really big present, maybe a new chainsaw or something). We’re being overrun by our three grandsons (ages 7, 3 and a year old). Our two granddaughters are wisely staying in sunny and warm Minnesota. Meanwhile, we’re hunkered down awaiting the jolly old Elf. I’ll see you back on Frieday, December 26th.

For now, I have an arboriculture law present for you from me.

I really do, a little literary gem, a simple case from That State Up North (Michigan, for you non-Ohioans out there) in which the property owner sued a driver who careered off the road and ran into the landowner’s beloved oak tree. The tree was badly damaged, the plaintiff said, and would need special care for the remainder of its days.

The driver defended on jurisdictional grounds, arguing that Michigan’s “no-fault” insurance law meant that the court could not assess property damages against him for the mishap.

The Court denied the landowner’s case, but it did so in verse (with apologies owed to Joyce Kilmer):

We thought that we would never see
A suit to compensate a tree…
A suit whose claim in tort is prest
Upon a mangled tree’s behest;
A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court’s decree.

Doggerel? I don’t think so. Perhaps “poetic justice” instead. Whatever it might be, it makes for more interesting reading, and no doubt amused everyone except the plaintiff, who was left uncompensated for the damage to the oak tree.

May your trees remain healthy, happy, properly trimmed by a professional arborist, and clear of easements, rights-of-way, neighbors, and passers-by for this season and all of 2026.

Merry Christmas to all!

Fisher v. Lowe, 333 N.W.2d 67, 122 Mich.App. 418 (Ct.App. Mich., 1983).

The facts:

“A wayward Chevy struck a tree,
Whose owner sued defendants three.
He sued car’s owner, driver too,
And insurer for what was due
For his oak tree that now may bear
A lasting need for tender care.
The Oakland County Circuit Court,
John N. O’Brien, J., set forth
The judgment that defendants sought
And quickly an appeal was brought.”

Held:

“Court of Appeals, J.H. Gillis, J.,
Gave thought and then had this to say:
(1) There is no liability
Since No-Fault grants immunity;
2) No jurisdiction can be found
Where process service is unsound;
And thus the judgment, as it’s termed,
Is due to be, and is,
Affirmed.”

– Tom Root

Case of the Day – Tuesday, December 23, 2025

Posted on December 23, 2025 by TLRoot tagged.

IMPEACHMENT IN WASHINGTON, D.C.

Just for something different, I thought I’d write about impeachment and Washington, D.C. You know, of course, what I mean, and her name doesn’t rhyme with Epstein… but some intend that it will.

The District of Columbia – the motto of which is “taxation without representation” – argues that it should have voting representation in Congress like the rest of us. As a voter, I would just as soon not be held responsible for the cretins who cast ballots on Capitol Hill. Being responsible for one level of incompetent boobs managing the city I lived in seems to be plenty.

Am I unfair to D.C. municipal employees? Not according to John Katkish, who accused the Dept. of Public Works Tree and Land Division (“TLD”) of incompetence. He said that when he noticed a tree leaning in on his house, he called the TLD. Nothing happened, and a week later, the tree fell on his residence.

John’s lawyer got flummoxed by the rules of negligence, which require, right out of the gate, you show that there is a recognized standard of care and that the defendant failed to meet it. John’s two experts did not testify as to what the national standard of care might be when a resident calls to say a tree is suddenly leaning toward his house and looking like it’s going to fall. (If you figure that the standard is pretty obvious, you can be forgiven for that burst of common sense… but you’ll never be a lawyer).

John’s second problem was that he insisted he had accurately conveyed the emergent nature of the situation to the TLD guy he talked to on the phone. But when the trial dust settled, the TLD had not put the man – whose name was Alvin – on the stand.

There is a great evidentiary claymore a party can wield on its foes in such instances, called the “missing witness instruction.” Where a witness is peculiarly within the control of one party, has particularly first-hand evidence on some element of the case, and yet is not called by the controlling party, the other party is entitled to have the judge tell the jury members that they may infer from the witness’s non-production that had he appeared to testify, his testimony would have been harmful to – that is, would have impeached – the controlling party’s case. Here, had the instruction been given, the jury could have surmised that Alvin would have testified that John screamed into the phone, “The tree is falling! The tree is falling!,” and thus made the emergency nature of the situation clear.

Alas, John missed out on getting a missing witness instruction, because although Alvin worked for TLD, there was no evidence that John’s lawyer could not have called him for a deposition, an interview, or even a cup of coffee.

In the final analysis, it seemed John called the TLD once and then figured that a single call should be enough. As it turns out, “one swallow does not a summer make,” nor does one call define an emergency.

Katkish v. District of Columbia, 763 A.2d 703 (Ct.App.D.C. 2000). When John Katkish, a resident of our nation’s capital, noticed a large tree leaning toward his house, he did what anyone would do in such circumstances: He called the District of Columbia Dept. of Public Works, Tree and Land Division (“TLD”), to complain.

Fat lot of good that did. A week later, the leaning tree fell on his house. That’s when John did a second thing that anyone would have done in such circumstances. He sued the District of Columbia for negligence.

At trial, John called two expert witnesses. The first, arborist James Biller testified that a 60-foot tall oak tree leaning toward a house with a lifting curb would warrant immediate inspection and possible abatement. The trial court rejected Arborist Biller’s opinion because he failed to define a national standard of care for the maintenance of leaning trees or the response time to notification of that condition. In addition, the trial court complained, Mr. Biller based his opinion on what Virginia municipalities do and lacked familiarity with the District of Columbia’s horticultural situation and how it compared to that in Virginia.

John also called Thomas Mayer, an expert in utility arboriculture. The trial court rejected Mr. Mayer’s testimony because he also did not specify a national standard or one relating to comparable municipalities.

On the first day of trial, Sandra Hill, a TLD employee, testified that Alvin Baltimore was the clerk who took John’s call on May 20. After the close of the evidence, John asked the trial court for an adverse inference against the District under the missing-witness presumption, because the District had offered no explanation as to why it had not called Alvin to testify. The trial court questioned whether Alvin was available to the District but not to John, and ultimately refused to draw an adverse inference from the District’s failure to call Alvin as a witness.

Unsurprisingly, the trial court found that John did not convey the emergency nature of the situation to the TLD when he called on May 20th, and thus held that the government was not negligent.

Equally unsurprisingly, John appealed.

Held: The trial court’s decision was upheld because John failed to present sufficient expert testimony to establish the standard of care the TLD needed to meet in order for it to avoid being found negligent. As for the missing witness Alvin, the trial court did not abuse its discretion by declining to draw an adverse inference regarding the worker who took the report of the leaning tree that the appellant phoned in.

While expert testimony regarding the appropriate standard of care isn’t necessary for acts within the realm of common knowledge and everyday experience, the appellate court ruled, a plaintiff must put on expert testimony to establish the standard of care when the issue in question is so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson. The expert’s testimony must clearly relate the standard of care to the practices in fact generally followed by other comparable governmental units, or to some standard nationally recognized by such units.

In this case, the Court found, “an average lay person is not capable of discerning when a leaning tree may create a dangerous situation requiring an emergency response and whether the likelihood of the tree falling is related to the condition of the tree, the street, or other circumstances.” Thus, the trial court was not wrong to rule that the standard of reasonable care and maintenance of a dead and leaning tree by a municipality – at least in the non-emergency situation presented in this case – was “beyond the ken of the average person.”

Based on the trial court’s finding that John told the District only that there was a “dead” and “leaning” tree in front of his house, the appellate court agreed that expert testimony was needed to determine the standard of care the District of Columbia had to meet to abate the situation.

The requirements for a missing witness inference are that the party proposing such inference must show the missing witness is (a) able to testify about the transaction such that he might be expected to be called as a witness, and (b) is peculiarly available to the party against whom the inference of unfavorable testimony is made. A trial court must exercise discretion in making its decision whether to give an instruction on the missing witness inference and be “constantly mindful of the dangers inherent in creating evidence from nonevidence.”

Here, John did not show that the trial court abused its discretion in refusing to draw a missing witness inference. John had plenty of chance to take Alvin’s deposition, meaning that Alvin was hardly just available to the Dept. of Public Works. Given the principle that the missing witness inference “need not be applied broadly or rigidly,” the court of appeals wrote, “we cannot conclude that the trial court erred as fact finder in refusing to draw the inference.”

Thus, John could not use Alvin’s absence to ask the jury to infer that he would have impeached D.C.’s defense.

The Court noted that there was plenty of evidence to support the trial court’s conclusions in the case. The record showed John made no follow-up contacts by phone or in writing to anyone in the D.C. government after the May 20th call, despite the fact he testified that he believed the tree was going to fall. In fact, John saw a TLD crew outside his house after he had noticed the leaning tree but before it fell, yet did not contact the crew to have them look at the tree. Therefore, the trial court’s ruling was supported by the evidence.

– Tom Root

Case of the Day – Monday, December 22, 2025

Posted on December 22, 2025 by TLRoot tagged.

WHEN THE GAS COMPANY COMES A CUTTIN’

I’ve told you before to beware of what lurks in the dark and malevolent corners of your deed. Today, we’re going to look at a cautionary tale.

No one really thinks about the wording of easements when the power company or the gas folks come by with some standard form clipped to a dollar bill. The utility reps tell you that it’s no big deal because the language is standard, no one can change it, and anyway, all your neighbors have signed off on the same form, so what’s the big deal?

I’m not a public utility, so I’ll tell you what the big deal is. Or, better yet, show you.

Consider New Jersey. Please. Just for right now. In East Brunswick, New Jersey (city motto: “We’re located at Turnpike Exit 9″), a gas transmission company had acquired an easement for a 3-1/2 foot wide natural gas transmission pipe through some unimproved land back in 1967. The property – once used only for mob hits and toxic waste dumping (just kidding) – was sold sometime after the easement was granted. At some point, a housing development was over a 42” high-pressure gas line the company had buried inside the easement.

The utility had always patrolled its pipeline and was well aware of the 19 oak trees growing along the street, 40 inches above the pipe. But when new evidence showed that tree roots could cause catastrophic pipeline failures, the gas utility announced it intended to cut down the trees.

The property owners, who probably had never bothered to read all of the boring stuff in their deeds that followed the “Know all Men by These Presents …” part, were outraged. They complained that the gas utility shouldn’t be allowed to cut the trees now because it hadn’t ever bothered to before. This argument is called “laches,” based on the old legal maxim that “equity aids the vigilant.” Or, as some like to say, “Don’t sit on your rights.” The owners argued that the gas company had never tried to remove the trees before, and – 40 years after obtaining the easement – it should not be allowed to do so now.

What’s more, the owners contended, the gas company couldn’t really prove the 19 trees were hurting anything.

Horrors! Imagine buying land subject to an easement, only to have the easement holder actually try to exercise the easement rights! As they say in New Jersey, “Oh, the humanity!” The gas utility carefully showed how new techniques had determined that tree roots could weaken high-pressure supply lines and, in fact, had caused some spectacular failures. The property owners could only muster an expert who opined that the tree roots in question probably wouldn’t grow that deep.

The Court of Appeals agreed with the trial judge. The gas company didn’t have to show that the tree roots were damaging the line, only that it had a reasonable basis for keeping roots away from its pipe. The evidence easily did that. As for the laches argument, the Court agreed that the nonuse of an easement in New Jersey didn’t result in the loss of the right. Plus, the Court said, the gas company had a good reason for not seeking to remove the trees until it did, as science had only recently determined that tree roots and gas pipelines didn’t mix.

Township of East Brunswick v. Transcontinental Gas Pipeline Corp., 2008 N.J. Super. Unpub. LEXIS 27, 2008 WL 2627688 (N.J.Super.A.D., July 7, 2008). Transcontinental (“Transco”) operates an interstate natural gas transmission system that runs from the southern Atlantic seaboard to New York City. One of its main lines, the Lower Bay Line, runs across East Brunswick and along Timber Road. This 42″ high-pressure gas line was built in 1967.

When trees fall on power lines, the lights go off for a few hours. When gas transmission lines are breached by tree roots, the misadventure that follows is usually much more energetic.

When trees fall on power lines, the lights go off for a few hours. When gas transmission lines are breached by tree roots, the ensuing misadventure is usually much more energetic.

Transco held a 100′ wide easement for the pipeline under a right-of-way agreement “for the purposes of laying, constructing, maintaining, operating, repairing, altering, replacing and removing from time to time one or more pipelines … together with such other rights as may be necessary or convenient for the full enjoyment or use of the rights herein granted [including] the right to enter upon the right of way and easement … at such times as Grantee may elect … and the right from time to time to keep said right of way free from trees, undergrowth and all other obstructions that may endanger or interfere with the construction, operation and maintenance of Grantee’s pipe lines[.]”

The owner sold the property subject to the easement, and in the 1980s, it was developed into a residential community of single-family homes. The easement covered the width of Timber Road, the sidewalks, and portions of residents’ front yards. The pipeline was buried 40″ deep and runs along one side of the street in the public space between the sidewalk and the curb.

Nineteen shade trees were planted sometime in the 1980s between the sidewalk and the curb, so they were growing directly above the pipeline. Transco knew of these shade trees because it regularly inspected and monitored the pipeline.

Natural gas pipelines must be properly maintained and monitored because any rupture can cause severe damage. Transco monitored the pipeline and conducted an extensive on-site inspection program of the Lower Bay Line pipeline right-of-way. An inspector walked directly over the pipeline at least once a year to perform ground tests to determine if natural gas was leaking. The right-of-way was patrolled almost daily by vehicle. It was inspected weekly by air to determine if any unauthorized excavation occurred in the area and to detect early signs of leakage.

Concerned about damage to the pipeline’s protective coating by tree roots, maintaining a clear line of sight along the pipeline, and preventing any delays in reaching the pipeline in an emergency, Transco tried to remove the 19 trees above the pipeline as part of a larger effort to remove trees above all of its pipelines in the area. The residents sued for a temporary restraining order enjoining Transco from removing the trees. Transco argued it had an absolute legal right to remove the trees under the right-of-way easement. Plaintiffs argued there was a genuine issue of material fact whether the trees endangered the pipeline and whether their removal was reasonably necessary for Transco’s enjoyment of its easement right. No evidence was adduced that the tree roots were currently damaging the pipeline, but there was evidence of potential harm.

A 2004 investigation revealed metal losses in the pipe walls ranging from 6% to 15% at various locations along Timber Road. Additional testing in 2005 uncovered pipeline coating defects or interruptions at some of the same places where the metal anomalies were discovered, but neither inspection definitively determined that tree roots caused the damage. Finding that Transco need not wait for actual damage to its pipeline before exercising its express easement rights, the judge concluded, “the record indicates that tree roots may damage the protective coating of the pipeline …. [and][f]urther, efforts to keep the protective coating of the pipe intact [are] part of the necessary maintenance program for a pipeline.” The judge also reasoned that while the pipeline’s path was marked with yellow markers, the trees detracted from the area’s appearance as a right-of-way and may lead to third-party interference with the pipeline, a major cause of pipeline accidents. The Court granted summary judgment for Transco.

The plaintiffs appealed.

Held: Transco had the right to remove the trees. The Court said the primary rule of construction is that the intent of the conveyor is normally determined by the language of the conveyance read as an entirety and in the light of the surrounding circumstances. Here, the easement plainly and expressly gave Transco the right to remove trees when they may endanger or interfere with the construction, operation or maintenance of the pipeline. The language specifically stated the grantee had “the right from time to time to keep said right of way free from trees, undergrowth and all other obstructions that may endanger or interfere with the construction, operation, and maintenance of Grantee’s pipelines….” The easement also clearly gave Transco the right to remove trees if they interfered with Transco’s immediate access to the right-of-way. The plain language of the easement gave Transco the express right to remove trees and did not require actual damage to or interference with pipeline operations before the trees were cut. The easement permitted preventive action to avoid potential harm, disruption, or interference with the operator’s pipeline.

The uncontroverted evidence showed that the pipeline and its coating along Timber Road had been damaged. Although there was no proof that the damage was caused by tree roots, other sections of Transco pipelines and their coatings in New Jersey had been damaged by tree roots. The Plaintiff had no proof to the contrary, but instead, their expert only posited that “the roots are not likely to interfere in any way with the pipeline;” the root systems are “generally non-invasive;” and root growth is “typically” confined to the upper two to two-and-one-half feet beneath the ground surface. The proof didn’t foreclose the possibility that the tree roots may grow deep enough to interfere with the pipeline, as they had in other sections of Transco’s pipeline.

Plaintiffs also contended Transco was barred from taking affirmative action by the equitable doctrine of laches because it waited so long to exercise its easement rights. But the mere nonuse of an easement cannot destroy the rights granted by it. Rather, clear and convincing evidence of the intent to abandon the easement rights must be shown. In this case, there was no evidence that Transco intended to abandon its easement rights; therefore, any reliance placed by plaintiffs on Transco’s inaction was unreasonable. Also, there was reasonable justification for Transco’s inaction over the years, as it was unaware of the potential danger posed by the tree roots at the time the trees were planted.

The evidence showed that since the trees were planted, there have been three accidents nationwide involving natural gas pipeline ruptures and three incidents in New Jersey in which Transco has discovered that tree roots have damaged pipelines. The Court said that the fact that action had not been taken earlier did not preclude preventive action now, nor did it require waiting for actual damage to occur.

The Plaintiffs did not demonstrate how their interest in preventing the removal of the trees outweighed Transco’s taking preventive measures in the public interest.

– Tom Root

Case of the Day – Friday, December 19, 2025

Posted on December 19, 2025 by TLRoot tagged.

RECREATIONAL USE STATUTE AND NATURAL DEFECTS

It’s hard to enjoy an idyllic sunset when you can’t get to the lakeshore. Recreational use statutes make it easier.

A landowner has little natural incentive to let people freely enjoy her land. You have a nice pond and woods, and, being as you’re a nice person, you let the birdwatchers’ society wander around looking for the white-throated needletail. Next thing you know, one of them steps into a prairie dog hole, and you’re being sued.

But public policy is firmly in favor of getting people out to enjoy nature’s bounty (and to exercise, a good idea what with all of the helpings of Christmas goose and figgy pudding we’ll be consuming next week). For that reason, virtually all states have passed some version of a recreational use statute. These RUSs generally state that a landowner only has a duty to avoid being grossly negligent to people using unimproved land without charge for recreational activities. The statutes are intended to encourage the opening of private land – unspoiled natural areas – for free recreational use by shielding landowners from liability for the most common forms of negligence.

Today’s case raises an interesting question under the Texas recreational use statute. In this case, the City of Waco had a park that included limestone cliffs. A boy was sitting on the cliffs when a portion collapsed, causing him to fall to his death.

A user might anticipate he could fall off a cliff – but not that it would give way.

The City argued it couldn’t be held liable under the statute because it did nothing to cause the defect in the cliffs. However, the Court of Appeals agreed with the boy’s mother that the landowner didn’t need to cause the defect if the fault was so latent, that is, hidden, that the recreational user would not reasonably be aware of it. That one might accidentally fall off a cliff was foreseeable, the court admitted. But it wasn’t open and obvious that the cliff one was sitting on would suddenly give way.

Because the defect wasn’t obvious, all the boy’s mother had to do was advance in her pleading some allegation of gross negligence. In her complaint, she argued that the City was aware that others had been injured by falling rocks and that it had reports warning of the danger posed by collapsing cliffs. Those reports recommended the City post warning signs, but it didn’t. The court said that the mom’s allegations were good enough to make out a claim under the recreational use statute.

Kirwan v. City of Waco, 249 S.W.3d 544 (Tex.App 2008). Debra Kirwan’s son, Brad McGehee, was sitting on the edge of Circle Point Cliff in Cameron Park, a park owned and operated by the City of Waco, when the ground beneath him gave way, and he fell about 60 feet to his death. Kirwan brought a wrongful death suit against the City, alleging a premises defect.

A firefighter who responded to the scene of Brad’s fall testified that an average person would “probably not understand that the ground could give way underneath them.” The trial court threw out the suit, holding that Debra had not: (1) “alleged that the Defendant was grossly negligent in creating a condition that a recreational user would not reasonably expect to encounter in Cameron Park in the course of permitted use;” or (2) “raised a genuine issue of material fact.”

Debra appealed.

Held: The suit was reinstated and sent back for trial. Deb challenged whether Texas Civil Practice & Remedies Code § 75.002(c) – the state recreational use statute – requires that all premises defect claims be based on a condition created by the defendant, thereby precluding any claim based on the existence of a natural condition that the defendant knew about. Under the recreational use statute – intended to encourage landowners to open their property to the public for recreational purposes – a landowner’s duty to a user is no greater than that owed to a trespasser, the minimal duty to not injure anyone willfully, wantonly, or through gross negligence.

A few signs like this one might have saved the City of Waco a lawsuit – and spared a boy’s life.

The law is clear that a landowner has no duty to warn or protect trespassers from obvious defects or conditions. Thus, an owner may assume that a recreational user requires no warning to appreciate the dangers posed by natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake. But the appeals court held that the recreational use statute permits claims based on natural conditions, provided the condition is not open and obvious and the plaintiff furnishes evidence of the defendant’s alleged gross negligence. Here, the court said, the crumbling rocks and cracks on the cliff that gave way did not conclusively prove that the danger of the unstable cliff rock was open and obvious. Crumbling rock may alert the average person to the risk of slipping and falling, but certainly not that the ground will simply fall apart beneath him. The court ruled that unstable cliff rock is not necessarily an open and obvious condition that a person might reasonably expect to encounter.

To state a claim under the Texas recreational use statute, Deb had to allege sufficient facts to show that the City of Waco was grossly negligent. The pleadings need only provide a plain and concise statement of the cause of action sufficient to give the defendant fair notice of the claim involved. In her pleading, Debra alleged that the City was actually aware of the dangerous condition on the cliff, that other park patrons had died or been seriously injured by the condition of the cliffs, that the City received a report from its own expert warning of dangerous rock falls and advising the City to post signs warning of potentially fatal rock falls, and that the City had failed to do so, in fact, to warn or guard against this danger at all amounted to gross negligence.

The court agreed that Deb plainly alleged the City’s conduct amounted to gross negligence. The City’s complaint that the pleading didn’t allege that the City had created the condition was meritless. Where a claim is based on hidden natural conditions, such as the structurally unstable cliff rock in this case, Debra need not plead that the City was grossly negligent in creating a condition to make her case.

– Tom Root