Case of the Day – Tuesday, January 20, 2026

Posted on January 20, 2026 by TLRoot tagged.

SOMETIMES, DOING NOTHING IS AN OPTION

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

That’s the theory.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Tom Root

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

Posted on January 19, 2026 by TLRoot tagged.

SOME THINGS EVEN A COURT CAN’T DO

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Tom Root

Case of the Day – Friday, January 16, 2026

Posted on January 16, 2026 by TLRoot tagged.

OUT IN THE COUNTRY

A great artifact of a bygone era – besides King Tut’s treasure, of course – is the now increasingly quaint notion that the degree of care a landowner must exercise to be sure his or her trees do not pose a hazard to passersby depends on whether the land is “urban and residential” or “rural and undeveloped.”

Back in the day (as my mother used to say), the law assumed that an urban landowner could more easily inspect his or her trees, and with that relative ease of inspection came a greater duty to people using the highway that passed his or her property, a duty to prevent an unreasonable risk of harm from defective or unsound trees on the premises. Trees of any kind, whether foreign or domestic, native or invasive, planted or naturally growing there since time immemorial…

Rural landowners, however, may have hundreds or thousands of trees lining the back roads and byways. For those folks, that urban duty to inspect does not apply if the trees – as is often the case – are of natural origin growing on rural, undeveloped land. This rule is rooted (if I may make a tree pun) in the commonsense notion that out in the country, inspection of countless trees is utterly infeasible, bordering on impossible.

As we will see in today’s case, what at first blush seems unquestionably rural may really not be so rural. Out in the country… not as simple as it used to be.

Incidentally, many times cases like these settle as soon as the summary judgment motions are decided. Parties can see which facts are to be left for resolution at trial, and often they don’t want to leave the case to chance (which is another word for “jury”). Here, after CSX lost its summary judgment motion, it settled with the victim’s widow for $800,000.00.

Gaines v. CSX Transportation, Inc., 2019 U.S. Dist. LEXIS 11829; 2019 WL 315980 (U.S. District Ct., S.C., Jan. 24, 2019). During a very windy February afternoon in 2016, Mike Gaines was driving his truck on Gilchrist Road in Darlington County. He encountered a broken tree limb blocking the road, parked his truck, walked up to the limb, and began removing it. While Mike was bending down to pick up the limb, a pine tree fell on him and seriously injured him. The pine tree had been standing on an abandoned railbed right-of-way owned by CSX Transportation. The tree had not been planted there, but instead was naturally occurring and indigenous to the area. Mike Gaines died from his injuries about two hours later.

Mike’s widow Cindy sued CSX in a wrongful death and survival action in state court. She alleged the fallen tree was “damaged or diseased” and that CSX had a duty to maintain its property “to make certain trees on its property safe, and a duty of reasonable care to make certain trees on its property are safe for travelers of streets adjoining its land.”

CSX removed the action to federal court and subsequently filed a motion for summary judgment.

Held: CSX was denied summary judgment because questions of fact about the nature of the property – rural or urban – remained to be answered.

Summary judgment is a procedure used where there are no questions of fact to be determined. Instead, the facts are clear and undisputed, and the only question is how the law should be applied to the facts to reach a judgment.

To prove a negligence claim in South Carolina, a plaintiff must show: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached its duty by a negligent act or omission; (3) the plaintiff suffered injury or damages; and (4) the breach was the actual and proximate cause of the plaintiff’s injury.

South Carolina follows the rule that a landowner in a residential or urban area has a duty to others outside the property to prevent an unreasonable risk of harm from defective or unsound trees on the premises. However, the duty does not extend “to an owner of trees of natural origin growing on rural, undeveloped land.” The sole issue raised in CSX’s motion for summary judgment was whether it owed a duty of care. CSX argued that it was entitled to summary judgment because “South Carolina law does not require an owner of rural land to inspect trees on its property so as to prevent a defective tree from falling onto a public highway causing injury.”

Cindy contended there was a real question of fact whether CSX’s property was residential or urban, or whether it was rural and undeveloped.

Whether the law recognized a particular duty is a legal question normally decided by the court, not the jury. “In some circumstances, however,” the Court said here, “the question of whether a duty arises depends on the existence of particular facts.” Here, the question of whether CSX had a duty to prevent an unreasonable risk of harm from defective or unsound trees depends on whether its property was located on rural, undeveloped land.

CSX showed that only about six vehicles an hour passed by the Gilchrist Road property. The area was “sparsely populated,” CSX said, consisting mostly of farmland and woods. No railroad tracks or trains have been there since the early 1970s. In fact, the only change in the past half-century was that Darlington County paved Gilchrist Road a few years ago.

Cindy claimed the CSX property was residential or urban. She showed that multiple homes are located near CSX’s property; that a large automobile auction storage lot is nearby; that cultivated farmland indicates the area was developed; and that Gilchrist Road is a “frequently traveled roadway.” Plus, Cindy submitted 2013 correspondence between her late husband and CSX about the paving of Gilchrist. Mike had written to CSX on behalf of his neighbors, asking for its cooperation in acquiring the right-of-way. Mike had said, “Given that most of us have resided on this road for multiple decades, the culmination of this activity has been a long-awaited goal. This project offers improvements that will greatly enhance accessibility to our homes, while simultaneously providing better drainage and safer travel.” The letter was signed by Mike and over a dozen other Gilchrist Road residents.

CSX wrote back, referencing “the impact [the road paving] will have on you and your neighbors.” Oops. Who knew a no-account PR letter could come back to haunt the railroad like that?

Finally, Cindy argued CSX’s property cannot be considered undeveloped land, because it consists of a raised railbed onto which various trees later grew, including the one that killed Mike.

“Based on the above evidence,” the Court ruled, “there is a genuine issue of material fact regarding whether Defendant’s property is ‘rural, undeveloped land’ or whether it is ‘in a residential or urban area’.” Whether CSX had a duty to Mike Gaines with respect to defective or unsound trees on its property “depends on facts — rural/undeveloped versus residential/urban — that must be decided by a jury.”

Rather than let a jury of local folks get their hands on the question of whether a big, rich, faceless railroad should write a check to help out the poor widow of a local guy who simply stopped to clear the road for the benefit of his neighbors and the traveling public, CSX wisely settled.

– Tom Root

Case of the Day – Thursday, January 15, 2026

Posted on January 15, 2026 by TLRoot tagged.

DANGER TREES AND PIXIE DUST

Yesterday, we took up the question of trees on tree lawns, an issue that arose because Jim Busek, once a Norwalk, Ohio Reflector columnist, was up in arms over that city’s plans to cut down 62 boulevard trees that were interfering with the sidewalks.

Instead of removing the trees, Jim proposed that the offending roots be chopped out and the trees then be encouraged not to grow any to replace them. While Jim was busy whispering to trees, we were wondering whether he might be liable if a dead ash tree standing on his tree lawn fell onto a passing motorist. Now, mind you, we don’t know whether Jim even has any trees on his tree lawn, but you know how it is when you hold yourself to the public as a famous columnist. You become a lightning rod. Sorry, Jim… you’re fair game.

In our discussion of Wertz v. Cooper, we delivered the bad news that Jim, as owner of the strip of grass between the public sidewalk and street, may well be liable. As an urban property owner, he has a duty to inspect and remove trees that may reasonably pose a danger to third parties passing on public streets. So Jim’s hanging out there a country mile (or maybe a city mile, because he is an urban landowner, and Wertz tells us they’re different).

But is he hanging out there alone? Although Jim owns the tree lawn, it lies within the 60-foot-wide right-of-way of the street. The Ohio Supreme Court has pointedly said that the “roadway, the space immediately above the roadway, the shoulder, the berm, and the right-of-way are all under the control of the political subdivision … [which] has a duty to keep the areas within its control free from nuisance, i.e., conditions that directly jeopardize the safety of traffic on the highway. Where the [subdivision] fails in its duty, it may be liable for injuries proximately caused by the nuisance.” Manufacturer’s Nat’l Bank of Detroit v. Erie County Road Comm (1992), 63 Ohio St.3d 318, 322-23.

So the City has Jim’s back (or is on the hook, depending on your viewpoint) in case the pixie dust doesn’t work on the tree roots. Of course, the City has to have actual or constructive notice of the defect, just like the landowner in yesterday’s case. However, the City has already noted that 62 trees should be removed, and – if the homeowners balk enough to convince the City otherwise – the City’s previous decision that the trees should go will cut against any denial by the powers-that-be that they were blissfully unaware.

All of which brings us to today’s case. This lawsuit relates to an unfortunate man killed when a dead tree fell onto his car one stormy November night. The tree was on private property out in the country, but it had been dead so long that the landowner may have had liability. We can’t tell, because this case — in the Ohio Court of Claims — was solely against the Department of Transportation. The Court held that ODOT would be liable even though the tree was on private land – if it had breached its duty to inspect the tree.

If "Lance" happens to ride a bike, he might be at risk from the decayed tree, too ...

If Jim happens to ride a bike, he might be at risk from the decayed tree, too …

ODOT had a “drive-by” inspection program, reminiscent of one we considered recently in Commonwealth of Kentucky v. Maiden. The victim’s heirs argued that if ODOT employees had gone around behind the tree (away from the road), they would have seen the decay. Well, yes, the Court said, but that’s beside the point. ODOT has over 40,000 miles of road to inspect, and to inspect every tree in the manner suggested by the plaintiff would be economically infeasible.

Still, the principle we take away from this decision is that the City of Norwalk would not get off the hook just because the tree is on private land. That doesn’t mean that Jim’s going to feel that much better in the defendant’s dock if the mayor has to stand next to him.

Our sad conclusion: Jim may not be the only one liable here. He knows the City has identified the trees as a hazard, and that alone places him on actual notice. If his 98-cent remedy of cutting some roots and hoping for the best doesn’t work, both his homeowners’ insurance and the City’s pocketbook could get a workout.

What a pain in the ash that would turn out to be!

Blausey v. Ohio Dept. of Transportation, 2005-Ohio-1807, 2005 Ohio Misc LEXIS 134, 2005 WL 894878 (Ohio Ct.Cl., 2005). Dale Blausey was killed during a windstorm when the car he was driving was struck by a falling Norway spruce tree on a U.S. highway in Erie County, Ohio. The tree had been growing on a roadside right-of-way obtained by the defendant on land that was owned by Joe Henry but occupied by a tenant. The primary proximate cause of the fall was the severe deterioration of the roots on the east side of the tree and the high wind that blew the tree onto the highway. The tree had been struck by lightning in 1973, and the damage from that strike led to interior rotting and an infestation of carpenter ants, the combination of which destroyed much of the root system. The deterioration had existed for as long as ten years, gradually weakening the tree to the extent that it became a hazard.

Before it fell, the east side of the tree that faced the highway showed little, if any, evidence of decay. Dead limbs were not clearly visible from the road. Limbs had been removed from the lower part of the tree, which was not uncommon as landowners sought to mow, decorate, or otherwise use the land. Additionally, the lower part of the tree was obscured by bushes and vegetation. The upper growth of both the healthy and the diseased spruce trees was green and quite similar, although, on close inspection, the growth on the healthy spruce appeared to be slightly denser. Cone growth was normal on both trees. Although the 1973 lightning strike had caused the tree to lose its “Christmas tree” shape at the top, the loss was not very noticeable. However, an inspection of the west side of the tree would have revealed evidence of deterioration and of a potential hazard. The State had not inspected the tree except from the highway, and that inspection did not reveal any defect.

Blausey’s executor sued the State for negligence in not identifying and removing the danger tree before the accident and accused it of maintaining a nuisance.

Held: The State was not negligent. To prevail upon a claim of negligence, a plaintiff must prove by a preponderance of the evidence that the defendant owed the plaintiff a duty, that it breached the duty, and that the breach proximately caused the injury. The State has a duty to maintain its highways in a reasonably safe condition for the motoring public, but it doesn’t have to become an insurer of the safety of state highways.

To constitute a nuisance, the thing or act complained of must either cause injury to the property of another, obstruct the reasonable use or enjoyment of such property, or cause physical discomfort to such person. In a suit for nuisance, the action for damages is predicated upon carelessly or negligently allowing such a condition to exist. But for liability to attach to a defendant for damages caused by hazards upon the roadway, a plaintiff must show the defendant had actual or constructive notice of the existence of such hazard. The distinction between actual and constructive notice is in the manner in which notice is obtained or assumed to have been obtained rather than in the amount of information obtained. Wherever the trier of fact is entitled to hold as a conclusion of fact and not as a presumption of law that information was personally communicated to or received by a party, the notice is actual. Constructive notice is what the law regards as sufficient to give notice and is regarded as a substitute for actual notice. To establish that the defendant had constructive notice of a nuisance or defect in the highway, the hazard “must have existed for such length of time as to impute knowledge or notice.

The court found insufficient discernible evidence available to the defendant’s inspectors to warrant further investigation of the damaged tree or to determine that it was hazardous before the accident. While a close inspection of the tree would have revealed that it was a hazard, the deteriorated condition of the tree was not apparent through the Department’s routine visual inspections made from the roadway, and with over 40,000 miles of road to inspect, the Department was not — as a matter of social and economic policy —expected to individually inspect the trees.

– Tom Root

Case of the Day – Wednesday, January 14, 2026

Posted on January 14, 2026 by TLRoot tagged.

SOMEONE’S GOTTA DO SOMETHING ABOUT ALL THESE ASH HOLES

We read a lot of newspapers. Mostly online these days. Some are truly excellent. Some are pretty good. A few are so-so.

Then there’s the Norwalk, Ohio, Reflector, which we read for reasons too complex to explore here. Suffice it to say, if you have a parakeet, the Reflector is all the newspaper you’ll ever need.

A few years ago, then-Reflector columnist Jim Busek complained about the city’s plan to ax 62 trees that are accused of wreaking havoc with sidewalks. Jim bemoaned the fact the City had removed a number of ash trees 10 years ago (which he admitted was a “smart ash policy”). Jim was pleading for the 62 targeted trees, publicly and plaintively asking the Norwalk Safety Director whether there wasn’t an alternative to cutting down these old trees. Surely, Jim hypothesized, these at-risk trees are so mature that if the offending roots were cut, no new ones would dare grow, and the sidewalks would thus remain in place. Right?

Maybe if we cut the trees' roots, but ask it real nicely, it won't grow any new ones ...

Maybe if we cut the trees’ roots, but ask them real nicely not to grow any new ones, our problems will be solved …

Sure thing, Jim. While Norwalk arborists are busy looking for the pixie dust that Jim figures will prevent new root growth, let’s consider the strange legal limbo in which property owners find themselves when tussling with municipalities over trees located on tree lawns.

It turns out that Norwalk – known as the Maple City – didn’t rid itself of all of its ash trees. A few still stand on city streets, and ash borers haven’t overlooked them. So who’s responsible for those dead trees? Ironically, we’ve seen the issue arise before, as cities – operating under tight budgets – lean on homeowners to pay for the removal of tree lawn trees (that is, trees between the sidewalk and street, standing inside the city’s right-of-way.

So exactly whose problem is it?

An interesting question… actually, two questions, and we’ll pick on Jim in order to answer them. Let’s say, for example, that the dead ash on Jim Busek’s tree lawn falls on a motorist. Is Jim’s ash in a sling? And might the Maple City be liable as well?

So someone’s gotta do something about the tree. But who – Jim or the Mayor?

The infestation on this ash is pretty obvious.

Let’s consider Jim’s liability. There’s no doubt that the tree lawn is Jim’s property, despite the fact that it is subject to the City’s highway dedication. There’s a lot an owner can’t do with a tree lawn because of the City’s highway rights, but it’s still his or her property. Generally, the owner can plant and take down trees. The fact that an owner has the right to add or remove trees suggests that just maybe he or she has a duty to as well.

And what is that duty? In Wertz v. Cooper, one of Cooper’s trees fell onto Wertz’s fence during a storm. When Wertz sued her, she countered that she had no idea the tree was diseased and that the tree’s falling over was an act of God. The Court agreed. It held that in order for a landowner to have a duty, the evidence must establish that he or she had actual or constructive notice of a patent danger that the tree would fall.

There is an exception. Where the tree overhangs the street in an urban area, an owner may be held liable on general negligence principles for injuries or damages resulting from the tree or a limb falling onto the highway. Generally, an urban owner has a duty of reasonable care regarding their trees, including inspecting them to ensure they are safe.

This dying ash stands on a tree lawn in Norwalk. The signature tracks of the ash borer are evident.

So Jim may have a problem, beyond the fact that he’ll find no tree-root pixie dust at the nearby Home Depot. The duty to inspect isn’t an issue here. If Jim owns that dead ash tree, he is already on notice that the tree’s dead. The bare branches in mid-summer, the sloughing bark, and the borer tracks looking like spaghetti done in bas relief, are more than enough constructive notice than anyone would ever need. Whether the City does something about the dead tree or not, Jim would do well to hire an arborist to inspect the tree. If the tree should go for safety’s sake, Jim shouldn’t wait for the City to do it.

Would the same apply if tree roots damaged the sidewalk, making pedestrian passage dangerous? Absent any municipal code relieving property owners of liability for the condition of the sidewalks, it would hardly be a stretch for an unfortunate passerby to sue under the law of nuisance. Need an illustration? Look no further than Fancher v. Fagella.

Our next question: Would the Maple City be liable to remove the tree, independent of Jim’s obligation as a landowner?

Wertz v. Cooper, 2006-Ohio-6844, 2006 Ohio App. LEXIS 6755 (Ct.App. Scioto Co., Dec. 13, 2006). Following heavy rains, a tree that sat on Cooper’s property tore loose from its roots and leaned into Wertz’s fence and into a Shriner Colorado Blue Spruce tree that sat upon Wertz’s property. Wertz sued Cooper, alleging that Cooper failed to remove her tree in a timely manner. Wertz sought damages, including the cost of removing the fallen tree, the expenses to replace the damaged Blue Spruce, and other incidental damages.

Cooper argued that she had no knowledge of a defective condition of the tree, that she could not have been negligent in failing to maintain the tree, and that she could not be liable for the damage when an “act of God” caused the tree to uproot. The trial court agreed that there was no evidence that the tree was deteriorating and that Cooper was not liable for an Act of God.

Wertz appealed.

If the dead tree falls n a car, watch the scramble to avoid liability begin ...

If the dead ash tree falls on a car, watch the scramble to avoid liability begin …

Held: Judgment for Cooper was upheld. A negligence action in Ohio requires a plaintiff to establish that (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant’s breach, the plaintiff suffered an injury. In order for a plaintiff to establish the duty element in a negligence action arising from a fallen tree, the evidence must establish that the landowner had actual or constructive notice of a patent danger that the tree would fall.

There is an exception to the general rule, however, concerning the duty of a property owner relating to growing trees with limbs overhanging a public street or highway. An owner of land abutting a highway may be held liable on negligence principles under certain circumstances for injuries or damages resulting from a tree or limb falling onto the highway from such property. In addition, there appears to have developed a distinction throughout the United States that a lesser standard of care applies to rural, farm, timber, or little-used land than to strictly urban property. Generally, an urban owner has a duty of reasonable care regarding a tree, including inspecting it to ensure it is safe. The duty placed upon the urban landowner, who has only a few trees, is not a heavy burden. This is in contrast to the rural landowner who may have a forest full of trees, which would impose a duty of immense proportions and constitute an onerous burden on the owner.

Despite the heightened standard to be applied to an urban tree, Wertz had no evidence in this record to establish that Cooper had either actual or constructive notice of a defective condition of the tree. While Wertz advanced her belief that the tree was dead or dying, her allegation was conclusory. She presented no evidence to support her claim. What’s more, even if Wertz were right that she believed that the tree was dead or dying hardly establishes that Cooper knew or should have known that the tree was dead or dying.

– Tom Root

Case of the Day – Tuesday, January 13, 2026

Posted on January 13, 2026 by TLRoot tagged.

BOB AND TED’S EXCELLENT ADVENTURE

In these days, when so many people do the bare minimum needed to get by, it’s refreshing to read about a pair of go-getters like Bob and Ted. When the Weisslers built their dream home on the Finger Lakes in Palmer, Alaska, they arranged for electric coop Matanuska Electric Association to provide electric power. They signed off on an easement with MEA for a 4-foot-wide easement, a matter of some importance to the Weisslers, who wanted the maintain their privacy by cutting as small a swath through the trees as possible.

A work order was drawn up for the electric installation, noting “R2-4, 80 ft,” which in MEA-speak meant a four-foot right of way, 80 feet long. MEA dispatched Bob and Ted to clear the path on Weissler’s property. Ted admitted that they knew the clearing was to be four feet wide, 80 feet long, but the boys were energetic and looking for a chainsaw adventure. They cleared the stately pines from the road all the way to the northeast corner of the house and then, spying the meter box on the southeast corner of the building, decided to continue to clear to that corner as well. Ted knew the Weisslers wanted electrical service as soon as possible, and he and Bob figured they were exceeding expectations by enlarging the clearance to get the lights turned on that much quicker.

Their enthusiasm was as unbridled as their chainsaws were sharp. Bob and Ted cut a swath that, instead of being four feet wide, was up to 21 feet wide. The cutting cleared about 1,200 square feet, some four times what the work order called for and what the Weisslers wanted.

The Weisslers sued MEA for breach of contract and trespass, claiming treble damages for loss of timber under Alaska Statute 09.45.730. Punitive statutes mandating double or triple damages for wrongful cutting of timber are common in virtually all states, on the theory that merely requiring a wrongdoer to pay the value of the tree was insufficient deterrence when the cutting was reckless or intentional.

There is always a tension in calculating damages when the trees cut were not for commercial timber. It’s straightforward where the stand of timber is kept for sale. The plaintiff does some timber cruising, and the stumpage value is set. The trial court then trebles it and sometimes (depending on the state) dumps in attorneys’ fees, too. But what happens when the loss is of trees that lack much commercial value but are of great value to the homeowner… say, like the Weisslers, the homeowners love the privacy a stand of trees affords. Here, as the proper measure of damages, the court chose the cost of restoring the property to its approximate pre-cutting condition. The judge awarded compensatory damages of $5,250.00 ($4,050.00 restoration costs and $1,200.00 for maintenance) and then applied the treble damages provision of AS 09.45.730, ultimately ordering payment of $15,750.00, as well as attorney’s fees of $2,200.00 and interest of $6,300.00, for a total judgment of about $25,000.00.

MEA argued vigorously that the treble damages statute did not apply to cases like this one, where it was lawfully on the property but just sort of exceeded its brief. The statute provides that treble damages apply unless “the trespass was casual… or the defendant had probable cause,” in which case, only actual damages may be recovered. But the appellate court said ‘nothing doing.’ “Casual” means, essentially, negligent entry onto the property, such as if a car swerved off the road and hit a tree. MEA’s crew intentionally went beyond the easement and meant to cut down the trees.

As for “probable cause,” the court said that means “an honest and reasonable belief.” Ted and Bob knew the easement limits. They went beyond them, and – good intentions aside – they were trespassers, and not casual ones, either.

Matanuska Electric Association v. Weissler, 723 P.2d 600 (Alaska 1986). A couple of overzealous electric utility workers cleared a swath of up to 21 feet wide to bring electric service to a new home, even though the homeowner had given the utility only a 4-foot wide easement. The homeowners sued for trespass and asked that Alaska’s treble damages statute for wrongful timber cutting be applied.

The trial court agreed and trebled the damages, which were based in the first instance on the cost of restoration of the property. The homeowners won a $25,000 judgment. The utility, MEA, appealed.

Held: MEA was liable for treble damages. The utility argued that the treble damage statute’s primary purpose was to deter those who pursue their own objectives on a public right of way from disregarding the adjacent landowner’s interest. The Alaska Supreme Court rejected that argument, pointing out that “MEA’s construction of the statute would allow the most willful of trespassers, i.e., those who enter onto timber land to cut and sell another’s merchantable timber, to be liable for only single damages.”

MEA also argued that urges the court to apply common law principles governing punitive damages. Punitive damages require malice, MEA argued, and there was none here. The Supreme Court looked to Oregon’s treble damages statute (the law on which Alaska’s version was based). The Oregon courts had held that the legislature properly exercised its prerogative to define when single damages should apply and when treble damages should apply. The legislature abrogated common law here, and the statute is reasonable.

The statute requires that the trespass be without lawful authority, and MEA argued that it did not trespass because it had the Weisslers’ permission to be there. But, harkening to the Restatement (Second) of Torts § 168 comment d (1965), the Court held that the rule is well recognized that “one who has a private easement of way becomes a trespasser when he goes beyond its boundaries.” MEA exceeded the scope of the easement that the Weisslers granted and thus trespassed without lawful authority.

But, MEA asserted, any trespass it committed was “casual,” and hence only single damages should be awarded. MEA contended the trial court “found MEA’s excessive cutting to be the result of negligence and mistake,” but the Alaska Supreme Court disagreed. While the trial judge said that this was not a case where people were “recklessly cutting down other people’s trees without regard for them,” she nevertheless described MEA’s conduct as negligence “verg[ing] on recklessness.” At any rate, “casual” does not mean negligent. Instead, it comes from a 19th-century New York statute, in which “casual” meant “casualty” or “involuntarily,” contrasted with “designedly and under a claim of right.”

“Casual,” the Court said, “does not include a mistaken belief in the authority to cut trees.” A trespass committed under a negligently mistaken belief in the right to cut would not be “casual,” the Court said, because “the trespasser intends to cut.” Only where the trespass is unintended is it “casual.” Once a trespasser forms an intent to enter the land, the trespass becomes “willful,” and the plaintiff may recover treble damages.

The Court said, “MEA’s negligent decision to exceed the scope of the Weisslers’ permission to cut cannot qualify as ‘casual’ negligence. MEA’s agents intended to cut the trees under a mistaken belief that Weissler would approve. Since MEA’s agents intended to cut, their actions were not ‘casual’.”

Finally, MEA lacked probable cause to cut the Weisslers’ trees. The statute awards only single damages where a defendant had probable cause to believe that the land on which the trespass was committed was the defendant’s own or that of the person in whose service or by whose direction the act was done. The Court said that probable cause means “an honest and reasonable belief.” By definition, the Court ruled, “a negligent mistake as to authority cannot qualify as probable cause since negligence involves unreasonable conduct.

The Alaska Supreme Court concluded that the tree damages statute “mandates treble damages unless the trespasser exempts him or herself” by proving, as an affirmative defense, that single damages apply.

– Tom Root

Case of the Day – Monday, January 12, 2026

Posted on January 12, 2026 by TLRoot tagged.

NOT EVERYTHING IS SOMEONE ELSE’S FAULT

One fall day a few years ago, a 9-year-old boy named Julian Terry – who was busy being a 9-year-old boy – decided to climb a utility pole. Why did he want to do this? He was a 9-year-old boy… What more reason did he need?

The utility pole was one of those older styles with metal footpegs that began more than seven feet up the pole, high enough that trespassers (such as young boys) could not reach them. Unfortunately, the utility company did not reckon with Julian Terry’s determination. The intrepid young man climbed a tree next to the pole until he was high enough to reach the iron pegs, then climbed using the pegs and the tree branches together.

Alas, it was an accident looking for a place to happen. Julian’s foot slipped off a peg. He grabbed a tree branch, which broke beneath him. Julian seriously injured his arm on the iron rod that stopped his fall.

Julian’s mom wasted little time suing the electric company and two phone companies, all of which were using the pole. She argued the utilities created a dangerous condition by allowing a tree to grow near the utility pole, because the tree made it possible for little urchins like Julian to climb 8 feet up to the iron pegs.

Come on, man… There’s a reason the law requires that defendants actually have a duty to the plaintiff before they have to pull out their checkbooks. As we all learned back in law school when we read Palsgraf v. Long Island Railroad, “the risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” (Regular readers know how I love Palsgraf).

And so it is here. If the tree was too close to the utility pole and fell in the wind, causing a short that set a house afire, the homeowner would have a point. Risks to the power grid from a tree too close to the utility pole are reasonably perceived, and the utilities had a duty to maintain the lines by keeping the easement clear.

I recall going down the basement once to discover that my then 8-year-old son and his cousin had coated the concrete floor with WD-40 and were gleefully sliding around the room on pieces of cardboard. Should I have sued The WD-40 Company?

There was a lesson there for me, just as there was for Mrs. Terry. No adult has sufficient capacity for imagination to reasonably foresee what kids might do.

Terry v. Consumers Energy Company, 2016 Mich. App. LEXIS 303 (Ct. App. Michigan, 2016). Nine-year-old Julian was injured after he fell while climbing a tree next to a utility pole. His goal was to climb high enough to reach the iron climbing pegs on the pole, which started at over 7 feet off the ground, precisely to keep curious kids from using them to climb the pole.

Julian’s foot slipped from a metal peg, so he grabbed a tree branch to break his fall. The branch broke instead, and Julian seriously injured his arm on an iron peg on the way down. His mother sued, alleging the defendant power company and telephone carriers using the pole had created a dangerous condition when they allowed a tree to grow nearby. The defendants moved for summary judgment, arguing that they had acted reasonably in placing the pegs on the pole. Mrs. Terry responded that the defendants had a duty to reasonably inspect the pole and trim the tree to prevent the hazard.

The trial court granted summary judgment, holding that, “Quite frankly, I cannot find a duty that would have been owed to this young man that would have been breached.”

Mrs. Terry appealed.

Held: The defendant utility companies owed no duty to curious Julian. To prove negligence, a plaintiff must show that the defendant owed the plaintiff a duty of care, the defendant breached that duty, the plaintiff was injured, and the defendant’s breach caused the plaintiff’s injury. Generally, a plaintiff proves a defendant breached the duty of care by establishing that the defendant’s actions fell below the general standard of care to act reasonably to prevent harm to others.

Here, no one disputed that the climbing pegs on the pole were over 7 feet off the ground and that nothing about the pole itself was unreasonably dangerous. In fact, the Court said, the Defendants exercised reasonable care when they placed the pegs higher than even an adult could reach.

Mrs. Terry, however, claimed the defendants had a duty to inspect the nearby trees to ensure that they did not provide access to the power line. This case is different from one where a defect in the pole or wires caused the electrocution of someone holding a ladder nearby. There, the power company had “an obligation to reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects.”

Here, by contrast, Mrs. Terry sought to hold the defendants liable “for a condition of land aris[ing] solely from a defendant’s status as an owner, possessor, or occupier of the land.” She offered no evidence that the utilities owned or controlled the tree that Julian used to circumvent their safety precautions. The Court said, “Defendants are no more responsible for the tree that Julian used to circumvent that precaution than they would be had Julian used a ladder to reach the rods.”

We have to admit that we’re a bit confused by the holding’s failure to consider the location of the tree. Presumably, if it was close enough to the pole for young Julian to use it to gain access to the climbing pegs, it was within the utilities’ easement (and was probably too close to the wires). We question whether the utilities did not “control” the tree. But, as crusty old Judge Miller used to lecture us when we were young lawyers (a long time ago), ‘you dance with the girl who brung you.’ If Mrs. Terry offered no evidence about an easement that permitted the utilities to trim (or even remove) trees, the trial court was not free to imagine it.

– Tom Root