Case of the Day – Wednesday, October 29, 2025

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SWEET BAMBOO

Bamboo – essentially kudzu with cellulose stalks. A report on pandas I saw on some forgettable channel last week reported, among other things, that the anthropomorphic beasts have been eating bamboo for 6 million years.

If that’s so, they certainly have done a lousy job of it.

Bamboo grows at two rates, fast and faster. It invades like the Germans into Russia, a plant so aggressive that landscapers recommend installing a concrete tank in the ground to ensure that its roots don’t go deep and spread into the neighbor’s land. It grows dense and tall, and takes no prisoners.

Florida Power & Light, the defendant in today’s case, considered bamboo a “critical removal” species. When found under FLP lines, bamboo was not to be trimmed. It was to be removed, killed dead, dead, dead.

That didn’t happen in today’s case, and the invasive plant was so high and thick that a teenager climbed it and died when the bamboo bent over and contacted a live power line.

That’s where the personal injury lawyer came in. PI attorneys are their own type of invasive species. The complaints they file spread far and wide, like bamboo, and can be as aggressive as Bambusoideae of the grass family Poaceae itself. 

A personal injury case, if successful, results in an award of damages to the plaintiff intended to make him or her whole. You would think that would be straightforward, but the amount is computed by juries, and juries can be fickle. A crying mother who lost her son versus a faceless, soulless electric utility owned by a faceless, soulless holding company sporting a made-up name, Nextera Energy, Inc. That holding company, stock symbol NEE, had net income of $6.9 billion (with a “b”) last year, on total revenues of $24.7 billion.

That’s a lot of money, and it spawns plaintiffs’ attorneys’ arguments I’ve heard many times before: Corporate greed killed the boy, and don’t you think this poor woman deserves at least one-half of one percent of FP&L’s obscene profits for her suffering? You, Mr. and Ms. Juror, need to send the defendant a message, and put the other corporate giants like it on notice that they cannot treat people this way.

In today’s case, the jury thought the loss of plaintiff Tricia Dominguez’s son was worth $12.5 million. It seems like a lot to me, but it is not my son who died. The tougher part is that the jury awarded Tricia another $15 million in punitive damages, damages awarded to punish FPL for its greedy and reckless decision to not cut the bamboo.

Punitive damages never made a lot of sense to me. Why should the plaintiff get them? If the object is to be like a fine in a criminal case, shouldn’t the punitive damages be paid to the state? And too often, the punitive damages seem to be as much a penalty imposed on a company for its size or profits as they are for truly abhorrent conduct.

Tricia’s PI attorney used a Florida doctrine known as direct liability, in which a corporation is punished for gross negligence if “there [is] willful and malicious action on the part of a managing agent of the corporation.” It worked, and FPL was socked with $15 million in punitives, despite the fact that the guy who was pilloried for gross negligence was a minor supervisor in a regional office, and despite the fact that there was no evidence he even knew about the bamboo stand where the accident occurred.

However, a court of appeals threw a healthy dose of reality on the case and undid the punitive damages.

Florida Power & Light Co. v. Dominguez, 295 So.3d 1202 (2019). In December 2011, 15-year-old Justin Dominguez was climbing a tall stalk of bamboo in his neighbor’s backyard. The stalk bent into a power line, resulting in Justin’s electrocution and death. The boy’s mother, Tricia Dominguez, filed a wrongful death action against Florida Power & Light, arguing that FPL was negligent because it ignored its own maintenance and safety standards when it failed to remove the bamboo, a fast-growing and uncontrollable plant, from the area near the line. She further alleged that FPL had been warned about the bamboo at the accident site but still failed to remove it. As a result of this negligence, she argued that FPL created a dangerous safety hazard that claimed her son’s life.

Tricia asked for punitive damages as well as compensation for her loss, complaining that the accident scene was so overgrown with trees that the power lines were not easily visible around the bamboo. She showed that FPL’s vegetation maintenance procedures explicitly recognized the risk of electrocution posed by foliage encroaching upon powerlines, including the danger to children who climb trees.

Bamboo in particular is a problem because of its aggressive growth rate. Thus, FPL designated it as a “critical removal” species that should be removed outright instead of merely trimmed in the vicinity of power lines. Tricia argued that FPL had been informed about the bamboo at the accident site by one of its contractors, who recommended it be removed. Despite the recommendation, Tricia alleged, FPL violated industry standards and its own vegetation maintenance policy by failing to do so. Tricia asserted that this failure warranted punitive damages because it was the direct result of a corporate policy that prioritized cutting costs and corporate greed over the lives and safety of the general public.

Tricia argued that due to direct liability, FPL – through the behavior of Barry Grubb, the head of vegetation management for the region in which the accident occurred and the person identified by FPL as being its vegetation management program expert – was financially responsible for the bamboo hazard. Tricia ran with that, arguing that Barry was willfully ignorant about the circumstances and hazards surrounding Justin’s death. When answering interrogatories, he claimed that no trimming or other maintenance was necessary at the accident site even though he had never visited the scene himself. At the time of his deposition years later, Grubb had still not visited the site and had no opinion on the adequacy of the maintenance there. He also testified that he was not familiar with the language in FPL’s vegetation maintenance rules about the danger of electrocution from foliage near power lines. In sum, Tricia argued, regional vegetation manager Grubb had taken a see-nothing, know-nothing approach. The jury agreed with this assessment and awarded her $15 million in punitive damages.

FPL appealed.

Held: The Court of Appeals upheld the wrongful death judgment and the $12.5 million in compensatory damages. It reversed, however, on the punitive damages.

Direct liability is one of two theories recognized in Florida through which a corporation may be liable for punitive damages. Under the direct theory, liability for gross negligence is established if the corporation itself engaged in conduct that was “so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct,” and its conduct contributed to the loss of the injured party. Because a corporation cannot act on its own, “there must be a showing of willful and malicious action on the part of a managing agent of the corporation” to establish direct punitive liability.

A “managing agent” is more than just a manager or midlevel employee. Instead, the Court held, a managing agent is an individual like a “president [or] primary owner” who holds a position with the corporation, which might result in his acts being deemed the acts of the corporation.

Here, Tricia sought punitive damages under the direct liability theory through the alleged gross negligence of a regional supervisor in FPL’s vegetation management program. At trial, supervisor Grubb was identified as the FPL employee who knew the most about this program, but he was only in charge of the program for a limited geographical area. He also testified that he has a manager himself, and thus he alone does not make policy decisions relating to the program. While his position certainly comes with significant managerial power, Grubb does not qualify as a managing agent of FPL. Overseeing only a portion of FPL’s arborist program, which is itself ancillary to FPL’s primary function of providing electric power, Grubb is at best a midlevel employee more akin to a bank vice president or hotel manager than to a corporate officer or official who could represent FPL as a whole. Because Grubb is not a managing agent for purposes of direct punitive liability, the Court said, the award of punitive damages in this case had to be reversed.

 Even if Grubb were a managing agent, punitive damages are only warranted if there is evidence he was negligent “equivalent to the conduct involved in criminal manslaughter.” To be punished by punitive damages, the Court observed, the conduct must be “so reckless or wanting in care that it constitutes a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

But in this case, trial testimony established that Grubb was not directly involved with the accident and did not know about the details of Justin’s death until years after the fact. Grubb also seemed unaware of specific FPL safety standards cited by Tricia, despite being identified as the person most knowledgeable about FPL’s vegetation program. Whatever negligence a jury may infer from this evidence, the appellate panel ruled, “It certainly does not rise to the level of ‘reckless disregard of human life’ or an ‘entire want of care, which would raise the presumption of a conscious indifference to consequences’.”

– Tom Root

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Case of the Day – Tuesday, October 28, 2025

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HE’S A CAD, NOT A TRESPASSER

It does not take very many years in the general practice of law for an attorney to see people at their worst. There’s nothing like watching a loving family, united in grief over the death of a loved one, get torn apart by greed and jealousy when the time comes to probate the will. A close second, however, has to be divorce.

Early on in my career, I witnessed a wife who threw her husband’s expensive shotgun collection into a swamp and refused – even on pain of jail for contempt of court – to tell anyone where she had bogged the prized Purdeys. Then there was the husband who hid all the money over a three-month period before announcing, “Surprise, I’m divorcing you!” His wife had been diagnosed with inoperable cancer, and he could not understand why he should spend all of their money on her healthcare when she was just going to die anyway.

One of my favorites was the couple who had agreed to an amicable divorce. They owed about $10,000 on credit cards, so they agreed to jointly borrow the money from the bank to pay off the high-interest debt with a loan that they would share in paying down. The day before the final divorce hearing, the husband called the bank and convinced the loan officer that his soon-to-be ex had asked him to pick up the check. He did, and then forged his wife’s name on the back, took the $10,000, and fled for Florida.

Shortly after he got to the Sunshine State, his mother died and left him $500,000. Using some of the money to get drunk and high, the still-the-husband ran his Harley into a bridge abutment at 95 mph. Since he had never gone through with the divorce, he was still married. Of course, the knucklehead had no will, so his brother – next in line for the money – got nothing, while my client, the wife (who had been furious at being stuck with the $10,000 loan obligation), got it all. She went to Florida, picked up his new $40,000 truck, all sorts of expensive tools, and the remainder of the money he had inherited (about $420,000). It took two cops to go with her to dead hubby’s family compound to pick up the property from the enraged family.

Karma is a bitch, sayeth… someone, I’m sure.

So why the family law lesson? Because, as we will see in today’s case, trying to screw your ex is never a very good idea. A moment’s visceral pleasure, followed by years (or a lifetime) of regret. Still, the ex-husband, whose in-your-face ripoff of the ex-wife even went to the extent of having her share paid to the new girlfriend, got off easy. When he sold 400,000 board feet of jointly-owned timber – cheating the ex out of $52,600, the former wife originally got her share plus treble damages under Louisiana’s timber trespass statute (and another $63,000 in legal fees). But the Cajunland Supreme Court ruled that whatever the ex-husband might otherwise be, he was not a trespasser to whom the treble damage statute applied.

Sullivan v. Wallace, 51 So.3d 702 (Supreme Ct. Louisiana, 2010). During their marriage, defendant Bruce Sullivan and plaintiff Janice Sullivan bought a 120-acre tract of land in Claiborne Parish. The couple divorced in 1990, but they retained the community tract in co-ownership and listed it as an asset in the divorce proceeding. The divorce judgment prohibited the parties from doing anything to sell or diminish the value of community property.

In 1994 and 1995, however, Bruce cut, stacked and sold some of the timber on the property. The checks for the 1994 timber he sold were payable to Priscilla Wallace, the defendant’s girlfriend at the time (now his wife). The checks for the 1995 timber were made payable to Bruce. In all, Bruce sold over 254,000 board feet, worth over $105,000.

In 1995, Janice learned that Bruce had been cutting and selling timber from their jointly-owned tract. She advised the timber buyer that the property was in litigation, and the buyer immediately ceased removing timber from the property. When Bruce told the buyer there was another 40,000 board feet of timber awaiting pickup, the buyer declined to have anything to do with it.

Janice sued Bruce, his girlfriend Priscilla and the timber buyer, claiming trespass, negligence, and conversion, and seeking treble damages and attorney fees under La. Rev. Stats. 3:4278.1 and 3:4278.2. At trial, Bruce argued the timber had come from his separately owned but adjoining tract, and that the timber had been damaged by an ice storm and had to be cut. The trial court, noting that the sale receipts predated the ice storm, didn’t believe him. Imagine that.

Instead, the Court ruled for Janice, finding that her share of the cut timber was about $52,600.00. To that figure trial court applied La. Rev. Stat. 3:4278.1 to award treble damages, or about $157,800.00, and to award attorney fees in the amount of 40% of the treble damage award, about $63,000.00.

The court of appeal affirmed that Janice was entitled to damages, but it reversed as to the treble damages and attorney fees. The appellate court agreed with Bruce that the timber trespass statute does not apply to co-owners of property, holding that the co-ownership articles of the Louisiana Civil Code provide adequate recourse among co-owners of real property. The appellate court cut Janice’s award to $52,600.00, representing one-half of the value of the lost timber, and vacated the portion of the judgment awarding attorney fees.

Janice petitioned the Louisiana Supreme Court for review.

Held: The treble damage statute for trespass to timber does not apply to co-owners who cut timber without the consent of the other owners.

The Court observed that the fundamental question in cases of statutory interpretation such as this one is legislative intent and determining the reasons that prompted the legislature to enact the law. The starting point in statutory interpretation is the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the Court said, the law is to be applied as written.

When the language is susceptible to more than one meaning, however, the Court held, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the words of the law must be given their generally prevailing meaning. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole, and laws on the same subject matter must be interpreted in reference to each other.

La.Rev.Stat. 3:4278.1, commonly referred to as the “timber trespass” or “timber piracy” statute, provides that it “shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.” Although the statute is directed to “any person” who cuts, fells, destroys, removes, or diverts for sale or use any trees, the Court said, the statute is facially ambiguous with regard to co-owners of the timberland, neither expressly including nor excluding these persons from its provisions.

When viewed strictly, the statute is violated only when “any person” acts with respect to trees growing or lying “on the land of another” and when this action is taken without “the consent of … the owner or legal possessor.” The timber trespasser owes the penalty to “the owner or legal possessor of the trees,” a phrase the Court said more logically describes a person other than the wrongdoer as described in the statute. What’s more, the timber trespass statute is found within the title of the Revised Statutes entitled “Agriculture and Forestry,” the chapter entitled “Forests and Forestry” and the part entitled “Protection and Reforestation.” Given this context, the Court held that the legislative purpose behind La. Rev. Stat. 3:4278.1 is to protect those with an interest in trees from loggers who enter their property without permission to harvest timber illegally. Thus, with the proper construction in mind, the Court said, “The focus of the statute is on an actor other than an owner.”

The Court said the fact that La.Rev.Stat. 3:4278.1 is not directed to co-owners who act without the permission of their co-owners was further supported by considering it in context with La. Rev. Stat. 3:4278.2, the 80% rule, which allows a timber buyer to cut standing timber when the buyer has the consent of co-owners holding 80% or more of the ownership interest. If 3:4278.1 applies to co-owners, then one co-owner who holds more than 80% of the ownership interest and permits timber to be cut in accordance with La. Rev. Stat. 3:4278.2 would nevertheless be liable to the other co-owners for treble damages under 3:4278.1 despite the fact the timber “buyer” would escape the penalty because of La. Rev. Stat. 3:4278.2(B). “Such a contradiction.” The Court reasoned, “cannot be what the legislature intended in enacting these statutes.”

Therefore, Janice was entitled only to her share of the cut timber.

– Tom Root

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Case of the Day – Monday, October 27, 2025

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STUPID LAWSUITS, TREE-TRIMMING DIVISION

The Internet, repository of wisdom that it is, features several videos of people leaning a ladder against a tree branch, climbing the ladder, and then cutting off the branch against which the ladder was leaning.

It is this kind of advance planning (along with every cellphone serving double duty as a video camera) that assures that America’s Funniest Videos will never run out of new material.

The Keystone Cops could not have done it better than the mook named Mook in today’s case. After being told not to trim his friend’s tree, he does it anyway, with a Rube Goldberg ladder, wearing dress shoes and sawing off the branch against which his ladder was leaning. Later, he told the paramedics he had no idea what had happened. That’s not surprising… it appears that his brain wasn’t functioning well even before the accident.

Kun Mook (Kun being his last name) did, however, have the presence of mind to hire a lawyer who was unafraid to bring such a nothingburger of a case. And, amazingly enough, it sort of paid off. Mook sued the landowner, Young Rok Lee, and his minister, Pastor Jang (who was a confederate in the tree-trimming misadventure). The Pastor had insurance, which paid the $100,000 policy limit as a settlement before Rok walked away with the win.

So who was the real mook, Mook or the lawyer who advised the insurance company to part with 100-large?

Kun Mook Lee v. Young Rok Lee, Case No. 2-18-0923 (Ct.App. Ill., Sept. 3, 2019), 2019 IL App (2d) 180923; 2019 Ill.App. LEXIS 732. Kun Mook and Young Rok were members of the same church, pastored by Rev. Jang. One day, Kun Mook and Pastor Jang showed up at Young Rok’s house, despite Rok’s request that they not come. Rok did not provide, maintain, or otherwise supply any of the equipment used in the subsequent tree-trimming efforts.

Upon looking at the tree limb, Mook said the work should be left to professionals because it was too large and too high, and the work would be dangerous. Not taking his own good advice, Mook and Pastor Jang unloaded their gear and attached two ladders with wire to reach the required height. Rok, who had been mowing his lawn in the back, came to the front yard and saw what Pastor Jang and Mook were up to, he immediately told the men to stop their efforts, because it was too high and too dangerous. The two men ignored Rok and continued to try to cut the limb off the tree. Rok eventually gave in and assisted them in their efforts.

Mook thought that the tree limb might damage the roof when it fell after being cut, so Rok tied one end of a rope around the limb being cut and the other end to another limb. The wired-together ladders were placed against the limb to be cut. Mook volunteered to climb the wired-up ladders to a height of 25 feet while wearing dress shoes and carrying an electric chainsaw. He sawed through the limb with predictable effect. The limb swung free, the ladder fell, and Mook was seriously injured.

Mook sued Rok and Pastor Jang for negligence, arguing that Rok failed to provide appropriate tools, safe instruction, a safe place to perform the work, and appropriate safety equipment, and failed to adequately supervise the work and secure the debris. Mook then filed a motion for a good-faith finding, noting that Pastor Jang had insurance coverage for the incident under his homeowner’s insurance policy and that the insurance company had tendered the limits of Pastor Jang’s policy, $100,000, to Mook. The trial court confirmed the settlement between Mook and Pastor Jang.

Rok stood as firm as his granite namesake, arguing Mook was more than 50% comparatively negligent and that, even if he had not been, Rok was not liable under the open-and-obvious rule. Specifically, Rok alleged that, at the time Mook fell, he had a duty to exercise ordinary care for his own safety, including the duty to avoid open and obvious dangers. Despite this, Rok argued, Mook “breached his duty by carelessly and negligently failing to appreciate and avoid a danger so open and obvious, specifically, two ladders affixed together reaching considerable heights leaned against a tree limb to be cut with an electric chainsaw, that any person would reasonably be expected to see it.”

Held: Mook would collect nothing from Rok.

A plaintiff alleging negligence must show that the defendant owed a duty to the plaintiff, that the duty was breached, and that the breach proximately caused the injuries that the plaintiff sustained. Relationship-induced duty can be inferred if the plaintiff can show that the injury is reasonably foreseeable, the injury is likely, the burden on the defendant of guarding the plaintiff against the injury is slight, and the consequences of placing that burden on the defendant.

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, the Court ruled, if but he knows or should know of the condition and should realize that it involves an unreasonable risk of harm to his invitees, and should expect that they either will not realize the danger or will fail to protect themselves against it. If he knows that or reasonably should be expected to know that, and he yet fails to exercise reasonable care to protect them against the danger, he is liable.

However, a possessor of land is not liable to his invitees for physical harm they suffer due to any activity or condition on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness. This is known as the “open-and-obvious” rule.

Here, the Court said, Rok, as a landowner, has a general duty to protect an invitee like Mook, his invitee, from dangerous conditions on his property. Nevertheless, the open-and-obvious rule applies, providing an exception to that duty. This is so, the Court said, because “we fail to understand how any reasonable person could not have appreciated the open-and-obvious danger of tying two ladders together and placing those ladders against a tree limb 20 to 25 feet above the ground, the very limb that he was attempting to cut down. We also find that no exception to the open-and-obvious rule applies here. Kun Mook was certainly not distracted from noticing that he was climbing the two ladders with a chainsaw in his hand. We also find that the deliberate-encounter exception does not apply. No reasonable person would expect that Kun Mook would climb the ladders and cut down the limb — with the top ladder leaning against the limb to be cut — because the advantage of getting rid of the limb outweighed the incredible risk of doing so.”

Besides, the Court said, Mook’s injuries were not foreseeable. “An injury is not reasonably foreseeable,” the Court ruled, “when it results from freakish, bizarre, or fantastic circumstances… The conduct that Kun Mook engaged in here—tying two ladders together, placing the top ladder against the very limb that was to be cut, climbing the ladders with dress shoes on and a chainsaw in his hand, and, finally, cutting the limb that led to his fall constitute, as a matter of law, freakish, bizarre, and fantastic circumstances.”

After initially looking at the tree limb, the Court found, Mook said that the work should be left to professionals because the tree limb was too large and too high and the work would be dangerous. “Nevertheless, he marched on in the face of that danger, climbing the ladders while wearing dress shoes and carrying a chainsaw. Then he proceeded to cut the limb, against which the top ladder was leaning. As a matter of law, we find that these actions go well beyond a showing of more than 50% liability.”

– Tom Root

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Case of the Day – Friday, October 24, 2025

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TRESPASS

Remember that kid when you were small, the neighborhood schemer who would convince everyone else to do something fun (which quickly became something stupid)? In our small Ohio town, the local instigator-in-chief was a jug-eared kid named Rick.

Rick’d talk us into going into the Smiths’ strawberry patch and make off with a quart or more of the biggest, reddest, juiciest berries… At least, until grumpy old Mr. Smith would catch us. Like he always did.

Everyone knows that trespass is an intentional invasion of a property owner’s interest in the exclusive possession of property. Pretty simple, huh? We were all trespassers, but back then, the penalty was meted out by our parents after they got an earful from Mr. Smith.

Rick? He was no trespasser. He never stepped foot in the strawberries, although he had every intention of sharing in the berry spoils we brought back. We were liable. He was not.

Does that seem right? It did not seem so to us at the time. It does not seem that way to the Washington Supreme Court, either.

Porter v. Kirkendoll, 2019 Wash. LEXIS 588, 2019 WL 4683940 (Supreme Ct. Wash. Sept. 26, 2019). Pepper and Clarice Kirkendoll hired loggers to harvest their trees. They owned a parcel of timberland abutting the western edge of a 60-foot-wide easement. The easement was located on land owned by Jerry Porter and Karen Zimmer.

A private access road, Madison Drive, ran within the easement. A strip of land west of the access road but east of the Kirkendolls’ land belonged to Jerry and Karen. Nevertheless, when Pepper hired G & J Logging Inc. to harvest timber, he told the loggers that he and Clarice owned all the land west of Madison Drive. G & J Logging and Boone’s Mechanical Cutting, Inc., harvested 51 Douglas firs located on Jerry’s and Karen’s land.

Jerry and Sharon sued the Kirkendolls and the loggers for waste under RCW § 4.24.630 and for timber trespass under RCW § 64.12.030. The loggers settled with Jerry and Karen, paying $125,000 and assigning their indemnity and contribution claims against the Kirkendolls as part of that settlement. The settlement was pretty slick. Jerry and Karen figured they would score another one-third of $125,000 by taking the loggers’ right to get contribution from the Kirkendolls ($41,666.67).

The Kirkendolls replied with their own slickness. They argued that the settlement with the loggers effectively released them from liability under the principles of vicarious liability. The trial court agreed with the Kirkendolls and dismissed the case.

The Court of Appeals reversed, holding that the settlement did not release the Kirkendolls from potential liability for directing the timber trespass. And it held that Jerry and Karen were precluded from recovering under the waste statute because relief is available under the timber trespass statute.

The Kirkendolls appealed to the Washington Supreme Court, renewing their argument that the settlement agreement released them from liability under principles of vicarious liability. They also argued that they are not liable for indemnity as a matter of law. In their answer, Jerry and Karen sought review of whether the timber trespass statute precludes them from recovering under the waste statute.

Held: The settlement did not release the Kirkendolls from liability, but Jerry and Karen are precluded from recovering under the waste statute.

In contrast to direct liability, which is liability for the breach of one’s own duty of care, vicarious liability is liability for the breach of someone else’s duty of care. A principal – like the Kirkendolls – may be vicariously liable as a matter of public policy to ensure that the plaintiffs have the maximum opportunity to be fully compensated. That public policy does not apply when a plaintiff has accepted a release from the primarily liable party who committed the tort and who was financially capable of making the plaintiffs whole. When a plaintiff settles with a solvent agent from whom he or she could have received full compensation, the very foundation of the principal’s liability is undermined. In at least some situations, then, a plaintiff releases a vicariously liable principal by settling with a solvent agent.

But, the Court said, that was not the case here. Pepper Kirkendoll misrepresented his boundaries and thus directed G & J Logging and Boone’s to commit a timber trespass. Therefore, it did not matter that the loggers separately settled with Jerry and Karen for their trespass. Pepper and Clarice were independently liable for their “culpable misfeasance” in directing the loggers to cut the wrong trees.

Under RCW § 4.24.630, the waste statute, more expansive remedies are available to a party. In addition to treble damages, the injured party may recover reasonable costs, including but not limited to investigative costs, reasonable attorneys’ fees, and other litigation-related costs. However, the waste statute explicitly states that it does not apply in any case where liability for damages is provided under § 64.12.030, the timber trespass statute.

– Tom Root

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Case of the Day – Thursday, October 23, 2025

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THAT EQUITY MAY PREVAIL

A barricuda in one of its habitats - the other is a courtroom.

A barracuda in one of its habitats – the other is a courtroom.

Sometimes you really wish you knew the back story of a lawsuit. Merely reading the recitation of facts and the application of the law in some cases leaves you wondering – why is this case even in the courtroom?

Today’s case is a perfect example. The Mannings lived in a housing development. Behind their well-manicured lawn lay some scrubby, undeveloped woods. Their neighbors had a back lawn that was about 30 feet deeper, and the Manning family mistakenly thought that their own lawn must be that long, too. So they cleaned and chopped weeds, took down some saplings, and installed a park bench and baseball batting cage.

But it turned out that the land wasn’t theirs. Presently, they got a letter from some limited liability company’s lawyer, telling them to cease and desist forthwith, govern their actions accordingly, and all of that legal mumbo-jumbo. Chastened, the Mannings withdrew to their own boundary.

End of story? Nope. The owner of the land, CUDA Associates, LLC — “CUDA” undoubtedly being short for “barracuda” — sued the Mannings for the grievous harm they obviously had done to its rather decrepit piece of real estate. The ‘Cuda sued for trespass, for intentional and wrongful cutting of timber in violation of Connecticut law, and for “unjust enrichment.”

OK, fo technically, the Mannings did commit a trespass ... but they left the land in better shape than they found it.

OK, so technically, the Mannings did commit a trespass … but they left the land in better shape than they found it.

And exactly who was unjustly enriched? You have to wonder why CUDA would have sued at all. After all, there was no damage to the CUDA land. In fact, the Court suggested the Mannings had improved it. What’s more, the trespass was an honest mistake, and the trespassers withdrew as soon as their attention was called to the error. We’ll never know the whys. But the trial court pretty clearly agreed with us that the whole thing was a tempest in a teapot: the judge dryly observed that “[t]he equities in this claim clearly rest with the defendants, and as such must be balanced with the nominal losses that the plaintiff has suffered.” In other words, the Mannings’ trespass was pretty minor and done honestly enough, and CUDA didn’t really suffer for it. In fact, it was better off for the trespass, because its property was left in better shape than it would have been in had the Mannings stayed home. The whole case seemed like a monumental waste of the court’s time.

However – and we should all know this by now – litigants are allowed to waste the court’s time, and they do so daily. As maligned as lawyers are, sometimes the fees they charge are the only brakes ever applied to the wacky legal claims their clients want to press in the courtroom. Unfortunately for the Mannings, no cooler heads prevailed in the offices of CUDA’s counsel, so the suit was litigated to judgment.

The court recognized that Connecticut law dictated that damages had to be awarded, even where the trespass was trifling. So it awarded CUDA $1,500, an amount which (we hope) was probably much less than its attorney’s fee. So some justice prevailed in the end, even if it was only found in a lawyer’s pocket.

CUDA Associates, LLC v. Manning, 2008 Conn. Super. LEXIS 93, 2008 WL 249974 (Conn.Super., Jan. 8, 2008). CUDA Associates owned 3,000 square feet from which the Mannings cleared trees, removed underbrush and in effect extended the back boundary of their property line by approximately 30 feet along the entire easterly line of their backyard. All of the surrounding land owned by CUDA or its successor was undeveloped. The Mannings’ house was located in a developed residential area with housing on both sides of White Avenue, and abutting the plaintiff’s property to the east and south. The Mannings installed a park bench, a baseball practice apparatus and the cutting of certain trees and undergrowth, an intrusion into the CUDA’s property that ended when CUDA wrote to them. The Mannings were operating under a mistaken belief that the property that they had encroached upon was theirs and roughly matched the back property line of their neighbor. This mistaken belief led them to do certain clearing and cutting of trees and underbrush and to use the property for their own benefit. CUDA sued for trespass, removal of timber in violation of statute and unjust enrichment.

CUDA could have erected a sign that warned against trespassing and spouted a lot of legal nonsense, like this one ...

CUDA could have erected a sign that warned against trespassing and spouted a lot of legal nonsense, like this one …

Held: The Court found that the Mannings committed a trespass upon a portion of CUDA’s property for their own use and benefit, but any loss of use for CUDA was not measurable. The trespass was negligent and not intentional and, therefore, only minimal damages were awarded. As for the cutting of trees, timber or shrubbery in violation of Connecticut General Statute §52-560, while the Mannings did cut trees, CUDA failed to establish the quantity or the value of any of the trees that had been removed. In fact, the Court said, the cutting may have actually improved the overall site appearance for CUDA’s benefit. Nothing more than reasonable and ascertainable value under the statute can be awarded.

As for unjust enrichment, the Court held that the non-permanent intrusion by the Mannings was unintentional. What’s more, any benefit derived by them from the CUDA land was coincidental to the use of their own backyard property and was of a de minimis nature. The Court said that equities in this claim clearly rested with the Mannings and had to be balanced against the nominal losses that CUDA suffered. The Court awarded CUDA $400 for the common-law trespass, $600 for the timber statute violation, and $500 for unjust enrichment.

– Tom Root
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Case of the Day – Wednesday, October 22, 2025

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ACQUIESCENCE

One big happy family ... until part of the homestead gets sold.

One big happy family … until part of the homestead gets sold.

Lawyers and surveyors are the first to tell you that you should always carefully survey and protect the boundaries of your property. Daily. It’s as important as flossing. And the advice is ignored just as often.

This is especially so when the adjoining property owners are family. If you can’t get along with your kin …

In today’s case, a family farm — handed down from father to son to son — had adjacent farmland parcels. The brothers owning them agreed that a barbed-wire fence they laid — measured off the centerline of a county road — was the boundary between their lands. They measured carefully and marked the fence with fed flags and pennies crimped around the barbed wire, but they didn’t use a surveyor. After all, we’re all family, so who needs to waste money on a third party?

The problem was that the county road centerline wasn’t accurate. As a result, the 60-acre parcel and the 18-acre parcel were off by about a quarter-acre in favor of the bigger piece of land. But no one knew it, and the agreed-upon boundary survived the decay of the fence, the installation of a mobile home and the digging of a well where one end of the fence formerly stood.

It wasn’t until the 18-acre parcel passed out of the family that the buyer discovered — four years after he took possession — that the presumed boundary was off a bit. What’s a quarter acre out in Nebraska farm country? For the buyer, Aaron Sila, it was a lawsuit.

A long-standing rule provides that mutual acquiescence between owners can establish a boundary line where the actual location of the line is unknown. The Nebraska trial court held, however, that the doctrine wouldn’t work in this case, because the line could easily have been calculated by a surveyor using the legal descriptions in the deed. The ruling, of course, begged the question: when exactly would a boundary be unknown if the owners hired a surveyor? Shades of Rumsfeld’s “known unknowns” and the “unknown unknowns,” back in the golden days of the Iraq invasion!

The Nebraska Supreme Court recognized that the trial court’s impossible standard effectively gutted the mutual acquiescence doctrine, and it reversed the decision. It didn’t matter, the Court said, that owners might be able to fix the actual boundary by hiring lawyers and surveyors. They in fact didn’t know where the line was for sure, and they agreed to what each knew was an approximation. It worked for longer than the 10-year statutory period, the Court found, and that was good enough to establish a new boundary by acquiescence.’

Sila v. Saunders, 743 N.W.2d 641, 274 Neb. 809 (2008). This case arose as a boundary dispute between two adjoining farm property owners, Kirk and Aaron. The properties were once part of a single farm owned by Kirk’s grandfather, but the land was divided into three parcels and given to his three sons: Vern, George, and Kirk’s father, Eugene. George got an 18-acre parcel east of a county road. Vern and Eugene were each given adjacent 30-acre parcels to the east of George’s 18 acres.

A year later, Vern died, and his 30 acres were acquired by Eugene. Kirk eventually inherited a 20-acre segment of Eugene’s 60 acres. That segment abutted the disputed 18-acre parcel originally given to George. In the early 60s, George and Eugene established the shared boundary of their properties, “[t]o split the farm up to get a boundary line so [George] knew what he owned and what my dad owned,” according to Kirk’s brother, Elloite. George and Eugene decided not to hire a professional surveyor to mark the boundary, and they mistakenly believed that the middle of the county road represented a section line marking the west boundary of George’s 18 acres. George and Eugene took a 100-foot tape measure and some flags and measured 594 feet east from the middle of the county road. They crimped a penny over the barbed wire and tied red flags on the fence at the 594-foot line of both the north and the south ends of the properties. After this, George’s crops were farmed on the west side of the boundary, and Eugene planted his crops on the east side of the boundary. An aerial photograph from the time showed a clear demarcation between the two parcels that appeared to be parallel to the county road from which the boundary had been measured.

In 1965, Kirk removed the barbed wire fence on the south end of the property but placed a water well next to the property line designated by the crimped penny. After the removal of the fence in 1965, the well was understood by George and Eugene to be the southern visual marker for the boundary between their properties. George and Eugene farmed their respective lands with the well on the south end and the crimped penny on the north end of the boundary for 21 years. When George died in 1986, Eugene and Elliotte continued to farm Eugene’s 60-acre parcel, and they also farmed George’s land for his widow, but they maintained the crop boundary line according to the well/stump boundary. When Eugene died three years later, Elliotte continued to farm George’s land and the 20 abutting acres inherited by Kirk, and he still considered the well and the tree stump as boundary markers.

Aaron Sila bought the 18 acres from George’s widow in 2001. Four years later, he hired a surveyor, who found that the centerline of the county road along the west side of Aaron’s property did not — as George and Eugene had believed — correspond to the section line. Aaron’s surveyor didn’t notice either a stump or a well as visual markers of a boundary line.

Remember Donald Rumsfeld's "unknown unknows?" The Court said that doctrine didn't limit mutual acquiescence


Remember Donald Rumsfeld’s “unknown unknowns?” The Court said that doctrine didn’t limit mutual acquiescence.

Elliotte hired a surveyor, whose survey showed the disputed area as a trapezoid of about 0.264 of an acre in issue. The trial court found that Aaron owned the disputed parcel because mutual acquiescence can only fix a boundary that is otherwise unknown. Since the true location of the boundary was set forth in the legal description and was readily ascertainable through conventional surveying techniques, the court concluded it was “known.” The court also rejected Kirk’s adverse possession claim. Kirk appealed.

Held: The trial court’s decision was reversed. The Nebraska Supreme Court held that under the doctrine of mutual recognition and acquiescence, while a boundary may be fixed in accordance with a survey when a different boundary is shown to have existed between the parties for the 10-year statutory period, it is that boundary line which is determinative and not that of the original survey. The fact that the true boundary might be “knowable” because the deed contains a metes and bounds description that a registered surveyor could have properly marked on the land — but did not — does not preclude the property owners from acquiescing in a boundary that they believe corresponds with the deed’s description.

Here, the two owners knew that the boundary line was merely an approximation of the real boundary. Nevertheless, that fact did not preclude a finding of mutual recognition and acquiescence, so long as the acquiescing parties recognized this approximation as their actual boundary. In order for mutual recognition and acquiescence to operate, there had to be an assent, by words, conduct, or silence, in a line as the boundary.

– Tom Root
TNLBGray140407

Case of the Day – Tuesday, October 21, 2025

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A MATTER OF LAW

Relatively few lawsuits ever make it to trial. Most often, they are resolved by motions to dismiss – the plaintiff has made some wacky claim that, even if fully believed, would not lead to a judgment – or the undisputed evidence shows that the plaintiff cannot possibly win.

Example 1: My neighbor to the southwest has some very tall oak trees. I sue her because the leaves are falling and the wind is carrying some of them (it seems like all of them) into my yard. She would file a motion to dismiss, arguing that even if everything I say in the lawsuit is true, I am entitled to no damages, because the law does not make her liable for where the wind may carry her falling leaves.

Example 2: I sue my neighbor, claiming that she has used her Turboblast 3000 blower to push all of her leaves into my yard. If that is true, the law would call it a trespass and I could recover the cost of hauling the leaves away. But she provides affidavits of various nosy neighbors and members of her garden club, who state they watched her pile her leaves in the street (where the city wants them put), and the wind later blew the piles into my yard. All I have is my assertion that she owns a Turboblast 3000 blower, and the leaves are in my yard. In that case, the court would grant her summary judgment because no reasonable jury could find any evidence that she, and not the wind, was the culprit.

As Mark Twain was reputed to have once said, nothing spoils a good story like the arrival of an eyewitness.

When no reasonable jury could find evidence enough to believe one side of a lawsuit, we say the other side is entitled to judgment in its favor “as a matter of law.”

In today’s case, the federal district court has to pick through a motion for partial summary judgment – where the plaintiff asks for judgment that resolves some (but not everything) of what it would have to prove at trial. The court splits the baby down the middle, finding the tree trimming company had a duty to little Jimmy, who was burned by a live wire while he was playing on a swing set, but leaving for a jury the question of whether the duty was breached.

Marland v. Asplundh Tree Expert Co., Case No. 1:14-cv-40 (D.Utah, Dec. 14, 2016), 2016 U.S. Dist. LEXIS 173156, 2016 WL 7240139. Since 1997, Asplundh Tree Expert Co. has contracted with Bountiful City Light and Power to provide power line clearance services. Under that contract, Asplundh’s responsibility is limited to providing line clearance so as to prevent interruption of service by trees or tree limbs coming into contact with the lines or other electrical equipment.”

Under the agreement, Asplundh had the right and duty to remove dead, defective or fast-growing trees located so as to be a hazard to BCLP’s lines whenever “practical and permissible.” Any removal required written permission from the property owner and BCLP. Under the agreement, BCLP would provide Asplundh with an area in which to work, called a feeder. Asplundh was then responsible for clearing the lines along that feeder. This would include determining what trees needed to be trimmed or removed, obtaining the necessary approvals, then doing the actual trimming or removing.

On an early fall day in 2005, Asplundh trimmed a large Siberian Elm at Lyle Henderson’s home in Bountiful. Asplundh trimmed the tree but did not remove it and did not recommend to BCLP that it be removed. About 21 months later, a limb from the tree fell onto a power line, knocking the line into a neighboring backyard and onto a swing set where a child, Jimmy Marland (not his real name) was playing. Jimmy was seriously burned. After that mishap, BCLP got Lyle’s permission to remove the tree.

Jimmy’s parents sued on the child’s behalf, claiming Asplundh was negligent in not removing the tree. They asked for summary judgment in their favor on the issues of whether Asplundh owed Jimmy a duty, and whether he breached the duty.

Held: Scott and Jennifer were granted summary judgment on whether the duty, but not on the breach.

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the party asking for summary judgment is entitled to judgment as a matter of law. In considering whether a genuine dispute of material fact exists, a court must determine whether a reasonable jury could return a verdict for the nonmoving party in the face of all the evidence presented.

To establish a claim of negligence, the Marlands had to show that Asplundh owed Jimmy a duty, (2) that Asplundh breached that duty, (3) that the breach of duty was the proximate cause of Jimmy’s injury, and (4) that Jimmy in fact suffered injuries. Here, the Marlands sought partial summary judgment, focused on the first two elements only, duty and breach.

Whether Asplundh owed Jimmy a duty of care is a legal issue for the court to decide, but if there is a duty, whether Asplundh breached it is a question of fact for the jury to decide. “Accordingly,” the court said, “summary judgment is inappropriate unless the applicable standard of care is fixed by law and reasonable minds could reach but one conclusion as to the defendant’s negligence under the circumstances.”

The Marlands argued that Asplundh’s duty arose under the Restatement (Second) of Torts § 324A, which had been adopted by the Utah Supreme Court. Section 324A holds that when someone agrees to render services for someone else, and when he or she should recognize the service is necessary for the protection of a third person, he or she is liable to the third person for physical harm resulting from his failure to exercise reasonable care in performing the service, if (a) his or her failure to exercise reasonable care increases the risk of such harm, or (b) he or she has agreed to perform a duty owed to the third person, or (c) the harm is suffered because of reliance of the other party or the third person upon the services being performed.

Here, the Court held, there was evidence that Asplundh has agreed to provide services to BCLP which Asplundh should have recognized was necessary to protect third parties like Jimmy. Utah law imposes on utility companies like BCLP the highest degree of care to prevent people from coming in contact with high-voltage electricity. Line clearance is necessary, not only to prevent interruption of service but also to prevent injuries that might result if tree limbs come into contact with electrical wires. Therefore, the court said, Asplundh would be liable to Jimmy for physical harm resulting from its failure to exercise reasonable care if at least one of three subsections in the Restatement are met:

The Court found evidence that subsections (b) and (c) applied. BCLP had a duty to prevent harm to others from its power lines and it delegated part of that duty — line clearance — to Asplundh. Because Asplundh was performing line clearance on the particular feeder, BCLP did not do so itself. Therefore, BCLP relied upon Asplundh to conduct line maintenance so it would not have to. Based upon these facts, the Court said, “There is evidence that Asplundh owed Plaintiffs a duty of care.”

The Marlands argued that “Asplundh breached its duty of care by not removing or recommending to have removed the subject tree in 2005.” Their expert witness provided an affidavit contending that Asplundh had a duty to suggest the removal of the Siberian Elm if the tree was accessible and posed a hazard based on its type, size, and proximity to the power lines. The court agreed that the affidavit stated an applicable standard of care, but even so, summary judgment was not appropriate.

The problem was that before Asplundh could remove a tree, it was required to seek BCLP’s and the homeowner’s permission. The Court agreed that the undisputed evidence showed that BCLP would have given permission to remove the tree because BCLP always gave permission when removal was recommended. But while Lyle Henderson, the homeowner, testified that on other occasions he gave “carte blanche permission” to the utility to trim the tree, there was evidence that he had refused permission to remove or even trim the subject tree in the past and was reluctant to remove the tree even after this accident. Based upon these disputed facts, the court said, the Marlands could not show, “as a matter of law, that removal of the tree would have been permitted by Mr. Henderson.”

Based on the conflicting evidence, the court said, the Marlands had failed to show “as a matter of law” that Asplundh would have received permission from the homeowner to remove the tree “and, therefore, have failed to demonstrate as a matter of law that Asplundh breached its duty of care.” Additionally, the court hints without elaboration, “even if Plaintiffs could demonstrate permissibility, various disputes exist concerning whether removal was required under the relevant standard of care.”

Note: The case went to trial. On February 21, 2017, a jury found Asplundh at fault and awarded Jimmy $3.4 million in damages.

– Tom Root

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