Case of the Day – Tuesday, June 9, 2020


Who could forget the opening, the sitar strings, Eric Burdon’s urgently whispered intonation, then the pounding of the drums? Yeah, Summer of Love, Monterey International Pop Festival, the Animals

We bring up “in the beginning” (not the much better-known use of the phrase), because it seems that everything arboreal in the common law is imagined to have sprung from the flinty ground of New England in 1931 with the Massachusetts Rule. We all know the Massachusetts Rule:

A property owner’s remedies when branches overhang or roots intrude from a tree in a neighbor’s land are limited to “self help.” In other words, a suffering property owner may cut off boughs and roots of neighbor’s trees which intrude into another person’s land. But the law will not permit a plaintiff to recover damages for invasion of his property by branches or roots of trees belonging to adjoining landowner. And a plaintiff cannot obtain equitable relief — that is, an injunction — to compel an adjoining landowner to remove roots or branches of such trees invading plaintiff’s property or to restrain such encroachment.

We all have come to think that the Bay Staters invented the Massachusetts Rule. Fact is, they did not. Just as the Hawaii Rule was around before Hawaii was even an American possession, the Massachusetts Rule predated Michaelson v. Nutting by at least 40 years, and probably – if we delved back into English common law – much longer.

In today’s case, circa 1893, a railroad got tired of its engineer being smacked in the face by some overhanging branches belonging to Mr. Hickey. It offered him $10 to cut down the trees (worth about $255.00 today). He declined. So the railroad sent its own crew to cut the branches off at. the property line. Mr. Hickey sued. The railroad defended. And the Michigan Supreme Court gave us a Hickey Rule.

They gave us a Hickey? Maybe calling it the Massachusetts Rule is a better choice.

Hickey v. Michigan Central Railroad Co., 96 Mich. 498, 55 N.W. 989 (Mich. 1893). Mr. Hickey lived next to the Michigan Central right-of-way. Probably to wall off some of the noise and cinders, he planted trees along the boundary of the railroad right-of-way. The branches eventually overhung the right of way to such an extent that at times they brushed against the face of the engineer when his duties required him to lean out of his cab for the purpose of maintaining a lookout.

Finally, the Michigan Central sent a crew to trim the branches of the trees up to the line of the fence. Mr. Hickey did not claim the trees were damaged beyond this, or more than was necessary to remove the overhanging branches. The questions presented was simply whether these overhanging branches constituted a nuisance, and whether, as a nuisance, the Michigan Central had the right to cut them, and whether, before cutting them, the railroad was obligated to serve notice on Mr. Hickey that it would do so, giving him the opportunity to remove them himself.

At trial, Mr. Hickey testified that a Michigan Central supervisor had complained that the overhanging “You had better take it, or someday I will get an order to cut down those trees, and then you won’t get anything.”

The trial court held that the Michigan Central had a duty to notify Mr. Hickey that the branches were an obstruction, that he must remove the branches or the trees, or that they would do so. Then, if he refused, the railroad might remove the branches from the right of way itself.

Held: The Michigan Supreme Court reversed, holding that “any person injured by a nuisance, to the extent that he may maintain an action at law therefor, may remove so much of the nuisance as is necessary to secure to himself immunity from damage therefrom; but he must not be guilty of any excess therein, for, as to all excess of abatement, he will be a trespasser.”

The general rule is subject to this exception: “Where the act complained of is one of positive wrong or willful negligence, or the security of life and property is endangered, and the danger seems imminent, the party threatened with the injury may abate the same without giving notice to the wrongdoer, or waiting for him to remove it. Where, however, the nuisance is merely permitted to exist, and the case is not very urgent, notice, and an opportunity to remove it, is essential, before the complaining party would be justified in forcibly abating the same.”

But it turns out that this exception has an exception. “There is no decided case,” the Court said, “which sanctions the abatement, by an individual, of nuisances by omission, except that of cutting the branches of trees which overhang a public road, or the private property of the person who cuts them. The permitting these branches to extend so far beyond the soil of the owner of the trees is a most unequivocal act of negligence, which distinguishes this case from most of the other cases that have occurred.”

The rule, the Court said, was that “trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages, and an abatement of the nuisance, against the owner or occupant of the land on which they grow, but he may not cut down the tree. Neither can he cut the branches thereof, beyond the extent to which they overhang his soil.”

The purpose of notice in such case, the Court said, is evident: is to give to the owner the opportunity of himself abating the nuisance. Here, no one disputed that Mr. Hickey knew that Michigan Central found the overhang to be a nuisance, and he refused payment to abate the nuisance. “We think,” the Court held, that “he is not in a position to insist that he was entitled to further notice.”

– Tom Root


Case of the Day – Monday, June 8, 2020


If there are two basic building blocks of tree law, they are the Massachusetts Rule – that New England rock of individualism and self-reliance – and the Hawaii Rule – that piece of creeping socialism that lets a property owner use the courts to force a neighbor to remove a tree that was a bother (we said that tongue-in-cheek).

After running out of board games to play while locked down by the pandemic, I went on a quest to identify the legal precedent in every state that addresses the issue of the encroachment of overhanging limbs and subsurface roots, so that we could present a state-by-state compendium of encroachment law. It was either that or cut the grass on my hands and knees with a pair of scissors. Wisely, I opted to go the encroachment route.

I had not even gotten out of the Northwest Territory – remember what that is? – when I found that the Massachusetts Rule did not start in Massachusetts. What’s more, as we see today, the Hawaii Rule was the law of the land in the Hoosier State back when Hawaii still had a queen, and the Americans had yet to diddle in the affairs of the Kingdom in order to engineer annexation.

Indiana’s rule can be summed up as this: a tree that encroaches on a neighbor’s property and creates a nuisance – producing such a condition that in the judgment of reasonable persons is “naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits” – has to be removed at the expense of the tree’s owners.

A tough place, Indiana… In today’s case, a tree that had once belonged to the plaintiff – who had sold the property to the defendant – had grown into the boundary fence, damaging it. The roots raised some sidewalk slabs on a walkway the plaintiff maintained near the boundary. The plaintiff, unwilling to fix the rather minor damage ($2,500 in 2010, not a princely sum), went to small claims court to make the other guys pay.

It seems to us that as a matter of equity, the plaintiff knew something like this would happen when he let the tree sprout years before, at a time when he owned the parcel on which the tree was growing. But equity appeared not to have any place in the courtroom that day.

But back to my basic point: the Hawaii Rule did not originate in Hawaii at all. What we thought we knew about that Rule turns out to be wrong. What next? Is the Massachusetts Rule equally mislabeled? Tune in tomorrow…

Scheckel v. NLI, Inc., 953 N.E.2d 133 (Ind.App. 2011). Steve Scheckel owned a piece of property separated be a chain link fence from a plot belonging to NLI, Inc. Steve has a walkway paralleling the fence runs about five feet from the boundary line. Steve had previously owned both his land and the NLI property, and – when he had – a tree grew on the NLI property near the fence. After he sold the land to NLI, the tree continued to grow, as trees are wont to do, until it grew into the fence and its roots grew under the walkway, leaving the gate in the fence unusable and the walkway badly cracked and buckled. Steve spent $2,500 fixing the mess.

Steve complained to NLI about the damage, but the corporation took no any action. He then sued NLI for negligence and nuisance in small claims court. The court found for NLI on the grounds that while the size and placement of the tree damaged the fence and walkway, a landowner is not liable for harm caused beyond property boundaries by a natural condition of the land.

Steve appealed.

Held: The Court of Appeals reversed, and ordered that the trial court find NLI liable.

Steve contended that the trial court erred in applying the “natural condition” rule. The natural condition rule, as set out in which provides that a landowner was not liable for harms caused to others outside of his land caused by a natural condition of the land, arose “at a time when land was largely unsettled and the burden imposed on a landowner to inspect it for safety was held to exceed the societal benefit of preventing possible harm to passersby.”

Over the years, the rule has been subject to exceptions when landowners had actual knowledge of a dangerous natural condition, regardless of location, and – in an urban area – when he or she fails to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of the trees on the land near the highway. The rationale for imposing such a duty on urban landowners is that the risk of harm to highway users is greater and the burden of inspection on landowners is lighter in such populated areas.

Most recently, the Indiana Supreme Court observed that the natural condition rule as stated in the Restatement of Torts § 363(2) has little or no utility in an urban setting. A landowner in an urban or residential area “has a duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring land owners, arising from the condition of trees on his or her property.”

Here, the Court of Appeals said that

[s]trictly applying the Restatement rule in these settings would leave landowners powerless in the face of a neighbor who refuses to remove or secure an obviously decayed and dangerous tree simply because it is a natural condition of the land. As a result, Indiana, along with several of our sister states, has retreated from strictly applying the Restatement rule in urban or residential settings where the landowners have actual or constructive knowledge of the dangerous condition.

Here, the small claims court held that the condition of NLI’s tree did not pose an unreasonable risk of harm to neighboring landowners, but rather the placement and size of the tree that caused the damage. The Court of Appeals, however, disagreed, seeing “no meaningful difference between the two situations. Indeed, it may be difficult to determine whether a tree is decayed to such an extent that it poses an unreasonable risk of harm to an adjoining property owner, but a tree upon one’s property that is growing into a structure on an adjoining property is readily observable.”

The Court applied a three-part duty analysis it adopted from an Indiana Supreme Court ruling, concluding that a landowner in a residential or urban community owes a duty to prevent an unreasonable risk of harm to adjoining property owners or their property resulting from trees growing upon the landowner’s property. Those three factors – relationship, foreseeability and public policy – all support its conclusion that NLI owed Steve a duty:

The relationship is significant in that it is between the owners of adjoining property, and will often be that of next door neighbors. There is a high degree of foreseeability of harm where one’s tree is growing into a structure on an adjoining property. Finally, the landowner is best situated to prevent or minimize the harm by trimming the tree upon the landowner’s property. Accordingly, we conclude that the trial court erred in applying the natural condition rule to bar Scheckel’s negligence claim.

The Court also said the natural condition rule did not bar Steve’s private nuisance claim, either. A nuisance is defined as whatever is injurious to health, indecent, offensive to the senses, or an obstruction of the free use of property, such that it essentially to interfere with the comfortable enjoyment of life or property. Ind.Code § 32-30-6-6. A public nuisance affects an entire neighborhood or community, while a private nuisance affects only one individual or a determinate number of people, arising when it has been demonstrated that one party has used his property to the detriment of the use and enjoyment of another’s property.

Nuisance actions may either be nuisances per se (at law) or nuisances per accidens (in fact). A nuisance per se occurs when the use itself is unlawful. A nuisance per accidens, a nuisance in fact, is not a nuisance in itself but becomes one by the manner in which it operates. In determining whether a private nuisance per accidens is actionable, the inquiry is whether the alleged nuisance produces such a condition that in the judgment of reasonable persons is “naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits.”

Ever since 1894, the Court said, Indiana has recognized the right of landowners to recover damages to their property caused by trees growing on an adjoining property as a private nuisance. In the 1894 Toledo, St. Louis & Kansas City Railroad Co. v. Loop decision, the Indiana Supreme Court held that in the event of trees growing so close to the boundary line between two properties that its branches encroach on the adjoining premises, the adjoining landowner may have an action for damages in nuisance if injury were shown.

The Court of Appeals concluded that the trial court erred by applying the Restatement’s natural condition rule to Steve’s cause of action.

– Tom Root


Case of the Day – Friday, June 5, 2020


Back a century ago or so, when the car was new-fangled, the airplane only read about in magazines, and no one had any broadband, simpler tree questions than our usual fare were being asked. And answered.

Here’s a sample tree question from those days: I have an apple tree growing close to our mutual property boundary. Some of the branches overhang your land, and every year, beautiful ripe apples fall on your side of the property line as well as on mine. Whose apples are they?

If you read yesterday’s case, you would say, “Why they’re mine, because I own the soil, the air branches above and the roots below,” remembering well the doctrine of cujus est solum ejus est usque ad coelum et ad inferos. And you would be…


At common law, the fruit belongs to the owner of the soil on which the tree is growing and not to him on whose soil the fruit happens to fall.

Now let’s make the issue more complex. Mr. X owns the timber rights to Blackacre (the name of the mythical piece of land that is the centerpiece of every first-year law school property law question). Ms. Y, however, holds title to Blackacre, subject only to Mr. X’s right to cut down the trees.

Now it turns out that the Blackacre trees are quite fecund, shedding copious amounts of valuable chestnuts. Ms. Y plans to make chestnut stuffing at Thanksgiving. Mr. X, however, says the nuts are his, because they came from the trees to which he has the rights to the trees. He intends to roast the chestnuts over an open fire at Christmas.

‘Aw, nuts!’ you say. ‘You fooled me about the apples. I’m not even going to try to guess. I have no idea.’

Neither did Roscoe Vincent and S.R. Haycraft, protagonist and antagonist in today’s 104-year old antique case from Kentucky.

The court sorted it out for the boys. It’s answer? ‘It depends.’

We love those kinds of answers.

Vincent v. Haycraft, 66 S.W. 613 (Ky.App. 1914). Gillis Vincent conveyed 35 acres of woodland to S. R. Haycraft, reserving to “all timber upon the land herein conveyed with the free and unobstructed right to cut and remove same for the final period of seven years from this date.” Shortly after the sale, Gillis sold the timber rights to Roscoe Vincent. A year later, Roscoe bought the acreage from S.R. Haycraft.

But S.R. reserved possession of the acreage for a year, agreeing to give occupancy of the tract to Roscoe on New Year’s Day 1913. The timber on the land consisted principally of beech trees, and in the fall before S.R. gave up possession, the trees produced a bumper crop of mast.

Mast is the fruit of the beech tree, found in small burrs that drop from the tree in autumn. They are small, roughly triangular and edible, with a bitter, astringent, or in some cases, mild and nut-like taste. They have a high enough fat content that they can be pressed for edible oil. At the time, mast was chiefly valuable as a food for hogs. The beech mast ripened and fell on the ground in the months of October and November.

The issue was whether the mast belonged to Roscoe Vincent, who had acquired title to both the timber and the land, or S.R. Haycraft, who had retained the use and possession of the land until January 1, 1913? The court below held that the mast belonged to Haycraft. Roscoe Vincent appealed.

Held: The mast belonged to S.R. Haycraft.

Roscoe argued that S.R. never acquired any title to the timber. Therefore, when he sold the land to Roscoe, he could only reserve the use and possession of the land that he had previously owned. Roscoe argued that the reservation of the timber carried with it the reservation of the fruit of the timber. Having no title to the timber, he said, S.R. could in no way acquire title to the fruit of the timber. He compared the situation to that of a fruit tree overhanging the premises of another, in which event it is generally held that the fruit belongs to the owner of the soil on which the tree is growing and not to him on whose soil the fruit happens to fall.

The Court agreed that S.R.’s purpose was to reserve until the following January 1st whatever estate he had in the land by virtue of his original deed, and it acknowledged that mast is as much the “fruit of the beech tree as the acorn is of the oak, the chestnut of the chestnut tree, or the walnut of the walnut tree.” But it is not like the fruit of a fruit tree.

In the case of fruit falling onto adjoining property, the Court said, the neighboring landowner on whose soil the fruit falls has no interest in the adjoining land of which the tree is a part, and thus, no right to the fruit. Nor is it like the sale of an orchard with the reservation of possession of certain of the trees. “The sole purpose of reserving an orchard or certain fruit trees,” the Court held, “would be to reserve the fruit, for fruit trees are valuable for the fruit alone.”

Here, the case depends on the parties’ intention. The primary purpose of the reservation was the timber itself, and not the incidental fruits of the timber.

Generally, the Court ruled, a sale or reservation of timber to be cut and removed within a specified time is a sale or reservation of only so much as may be cut and removed within that time. Therefore, the removal of the timber within the time specified is an element necessary to the completion of the title. Here, Gillis and later Roscoe, had the right at any time before the expiration of their timber reservation to cut and remove as much timber as they could. While S.R. reserved use and possession of the land after sale to Roscoe, Roscoe retained the right to go upon the land and cut and remove the timber, as well as any constituent part of the timber.

Roscoe retained the right to the mast, in other words, as long as it was hanging on the tree. When, however, the mast became ripe and fell on the ground, it was no longer a part of the timber, and the right to cut and remove the timber did not carry with it the independent right to go on the premises and carry away the fallen mast.

Thus, S.R.’s retention of the use and possession of the land until the following January 1st gave him the right to collect the ripened mast which had fallen on the ground during the months of October and November.

– Thomas L. Root


Case of the Day – Thursday, June 4, 2020


Over the years, these august blogs have pretty much settled the question of a landowner’s right to trim his or her neighbor’s trees to the property line – the Massachusetts Rule – whether the trimming be above the ground (branches) or below the ground (the roots). But what if the trimming kills the tree, or – as in today’s case – makes it fall down?

The answer can be found in the ancient Latin maxim “cujus est solum ejus est usque ad coelum et ad inferos.” I recognize that every time I trot out any Latin, I fondly recall Mrs. Emily Bernges, my sainted Latin teacher from high school days (and those days were many days ago). I recall her again today, because not only was she a crackerjack instructor and a gifted disciplinarian (in an all-male school with only two female teachers, she could calcitrare asinus when juvenile male asinus needed calcitraring), but she was able to instill in my young hormone-soaked teenage brain a love for writings of Marcus Tullius Cicero and Gaius Julius Caesar that remains with me today.

So what would Emily tell us about today’s case? She would ring the hotel desk bell she kept next to her jar of pencils, say “class, attention!”, and then explain that cujus est solum ejus est usque ad coelum et ad inferos translates as “to whomsoever the soil belongs, he owns also to the sky and to the depths.” We would protest that such can hardly be the state of legal affairs, because that would mean that every satellite transiting the sky would be committing countless trespasses as it crossed the continent.

It is true, Emily would tell us (it seemed to me she knew everything, so her being versed in some medieval common law would hardly have surprised me), that the cujus est solum doctrine – a relic of the Middle Ages – has been somewhat abrogated by aviation. The Supreme Court severely curtailed the “to the sky” part of the rule during World War II, ruling in United States v. Causby that the amount of sky a landowner owned was paltry. However, the part of the cujus est solum doctrine addressing ownership of the depths is still pretty good law.

In today’s case, the excavation at the cancer center pretty clearly caused the neighbor’s oak to fall, because a major part of the tree’s root system (which had grown onto cancer center property) was severed. The Alabama Supreme Court held that in excavating one’s property, a landowner should not negligently cut the roots of a neighbor’s tree. However,  the Court said,  as long as the cutting was non-negligent, if the neighbor’s tree fell as a result, well, cujus est solum ejus est usque ad coelum et ad inferos to you, unlucky neighbor. 

That “negligent” versus “non-negligent” severing part of the ruling is puzzling. I’m not sure of the difference between negligent and non-negligent cutting, or for that matter, whether there even is a difference. If you own ad inferos (and the Court says you do own to the depths), and remove any roots you find while excavating your inferos, that appears to be your right… no matter whether you sever them with a backhoe or hire beavers or even detonate a small nuclear device. It is the fact the roots were severed that caused the tree to fall, not how the roots were severed.

Harding v. Bethesda Regional Cancer Treatment Center, 551 So.2d 299 (Supreme Court, Alabama, 1989): Bethesda Regional Cancer Treatment Center hired general contractor GBB to build a concrete containment facility for a radio therapy linear accelerator, part of Bethesda’s cancer treatment facility. The concrete containment facility was located along the property line separating BRCT land from the rear of the Hardings’ property.

A few weeks after GBB completed the excavation needed for site preparation, a large tree located on the Hardings’ property fell during a wind storm, damaging their home. The Hardings claimed trespass, contending that the excavation work had been conducted across their property line. They also sued in negligence, claiming that the root system of their tree was cut and the tree undermined during the excavation on Bethesda Regional’s property.

The trial court entered summary judgment in favor of BRCT and GBB. The Hardings appealed.

Held: BRCT and the contractor GBB were not liable to the Hardings.

Intrusion upon land without consent of the possessor is an essential element of trespass quare clausum fregit. BRCT and GBB offered affidavits of the excavators that at no time did they encroach on the Hardings’ property, as designated by boundary line markers. The Court held that the affidavits shifted the burden to the Hardings to produce some evidence of encroachment. Dr. Harding’s affidavit averred that the “excavation and digging was done on what appeared to me to be my property… Mr. Lynn [a surveyor] advised me that in fact excavation work had been performed on my property.” But that affidavit was hearsay and speculation, the Court said, not admissible evidence.

The Court held that BRCT and GBB showed that the excavation work was done in a skillful, prudent, and workmanlike manner. Under Alabama law, a landowner has a right to excavate on his own property for a lawful purpose, close to the boundary line, as long as he does not endanger the lateral support of the adjoining property. The Hardings made no claim involving lateral support, but instead only complained that their tree roots, which intruded onto the BRCT property, were cut.

An adjoining landowner has a right to remove limbs that hang over his property. Given that right (enshrined in the Massachusetts Rule), the Court said, “an analogy can certainly be made regarding a property owner’s right to remove roots extending onto his property. This is especially true in light of the landowner’s right to excavate on his own land. To deny such a right would create an oppressive restriction on the use of one’s own land.”

The doctrine of cujus est solum ejus est usque ad coelum et ad inferos (“to whomsoever the soil belongs, he owns also to the sky and to the depths”) may have been qualified insofar as air flight and oil and gas law is concerned, the Court observed, but “it still extends to air space that can be occupied by limbs of trees, and, we hold today, to the depths that can be occupied by roots of trees.”

The owner of property has no duty to refrain from the non-negligent cutting roots of a tree that intrude upon his property. Here, the Court found, a civil engineer and land surveyor indicated in his affidavit that the survey of the lot showed “the location of a large hardwood tree which evidently blew over in a recent wind storm. The tree was on the property line and had been excavated underneath for construction of the adjoining parking lot… [O]ur opinion is that the wind blew the tree over because its root system had been cut and exposed.” An agricultural extension agent said in his affidavit that the “excavation [that cut the roots] made this tree highly susceptible to wind damage.” While these affidavits provided evidence that the tree roots had been cut and that the tree became more susceptible to wind damage because of the exposed root system, the Court said, they did not set forth any facts to establish negligent excavation.

– Tom Root


Case of the Day – Wednesday, June 3, 2020


coffeespill140410Mrs. Taubenfeld should have listened to the Mamas and Papas … they predicted that this might happen to her. It seems Mrs. T was walking past a Starbucks when she stepped into one of those tree wells cut into the sidewalk. She fell over an exposed tree root and hit the ground. She immediately hobbled off to her lawyer’s office. A lawsuit against Starbucks and the strip mall owner soon followed.

She argued that the lease between the strip mall owner and Starbucks required the mall owner to maintain the sidewalk. The Court disagreed, saying that the lease didn’t matter, because a contract between parties could not create a duty to the public where one didn’t otherwise exist.

Tree well – is it a threat or simply a menace?

Tree well – is it a threat or simply a menace?

And no such duty existed here. A village ordinance required that property owners and lessees keep their sidewalks clear of obstructions, but that law didn’t create a right for a private person to sue. If Starbucks had failed to keep up the sidewalk, it might have to answer to the city government, but not to Mrs. Taubenfeld.

Statutes commonly make people or entities liable to the government (in the form of fines or penalties) for noncompliance. Usually, where the obligation is to clear natural problems, such as snowfall, high grass or exposed tree roots – conditions which the owner did not create ­– the statutes do not give general public the right to sue for damages arising from noncompliance.

Taubenfeld v. Starbucks Corp., 48 A.D.3d 310, 851 N.Y.S.2d 512 (N.Y.A.D. 1 Dept., Feb. 21, 2008). Florence Taubenfeld fell over a tree root. The root was growing in a tree well cut into a public sidewalk in front of premises owned by Park Plaza and leased to Starbucks. Faster than you can say sugar-free hazelnut latte made with nonfat milk, Mrs. Taubenfeld sued, claiming negligence. The trial court granted Park Plaza’s motion for summary judgment, but denied Starbucks’ motion. Starbucks appealed.

Held: Starbucks won and the suit was thrown out. While the lease between Park Plaza and Starbucks required Park Place to maintain the sidewalk and landscaping. Assuming that the tree well into which Taubenfeld tripped and fell is part of the sidewalk or landscape, the lease could not create a duty to the public that did not otherwise exist. The Court held that neither Park Plaza nor Starbucks owed a duty to the public to repair the protruding root since neither created the root or caused it to exist by reason of some special use of the sidewalk or tree well, or were obligated to maintain the sidewalk or tree well under some statute or ordinance.

In this case, the lease imposed on Starbucks no more than a duty to maintain those portions of the sidewalk that the coffee shop made special use of, for the purpose of providing outdoor seating for its customers. As to the remainder of the sidewalk beyond Starbucks’ outdoor seating, Park Plaza’s duty was limited by a Larchmont village ordinance that directed property owners to keep the sidewalk in front of their premises in good repair and safe condition for public use. That ordinance, however, did not specifically create tort liability.

While Starbucks made special use of a portion of the sidewalk by putting out two tables with two chairs each, the special use did not extend beyond the tables and chairs to the tree well where Taubenfeld fell, or to the people on the crowded sidewalk. Some of those people were walking and others were standing around Starbucks’ tables chatting. Taubenfeld complained that she had had to walk around them, diverting her path into the tree well. Even if this were true, that fact made neither Starbucks nor Park Plaza liable to her.

– Tom Root


Case of the Day – Tuesday, June 2, 2020


It’s not what you know, it’s who you know… That’s what the people looking for a break are saying these days. Paul Manafort and Michael Cohen got released from federal prison early because of COVID-19. Previously, we’ve seen Rod Blagojevich, Michael Milken, Eddie DeBartolo, and, of course, Sheriff JoeSholom Rubashkin, an obscure sailor whose offense of being sloppy with secret material was seen as less serious than Hillary’s,  a dead boxer, and a right-wing writer who was prosecuted by Presidential enemy Preet Bharara for campaign law violations.

This might be a good time to talk about releases… not the Presidential kind, but rather the kinds of prospective releases or liability waivers that are a part of our lives, from amusement parks and ski resorts to pools to dry cleaners to parking lots and hat checks. We get little tickets that have fine print on the back stating that by using whatever service we’re using, we agree that we can’t hold the vendor liable if anything goes wrong. Our fedora’s missing from the hatcheck? Too bad. Our pants have a hole burned in them from being pressed? Maybe we can cut them off and make shorts. The roller coaster collapses and crushes us to death? Sorry, pal, guess this just ain’t your day, and tomorrow doesn’t look very good, either.

Certainly, such releases serve an important purpose, being crucial grease on the cogs of commerce. You can find websites that let you “roll your own” liability waiver form for whatever event you have planned with just a few clicks. But the proliferation of such releases has to leave us wondering – first, are all these liability waivers enforceable? And second, can we use prospective waivers in the arboriculture industry — such as “by hiring me to trim your tree, you release me of liability if I make it fall on your Yugo” — to absolve ourselves from liability?

A California court grappled with such a release when a developmentally disabled child drowned at a city-run camp for such children. The girl’s mother had signed a release from liability – parents sign those forms all the time, and whoever reads them? – but the trial court and the court of appeals held the release would not release the City from liability for gross negligence. The Supreme Court of California agreed, holding that an agreement to release future liability for negligence in recreational activities could not, as a matter of law, release the City or the employee from liability for gross negligence.

The case includes a detailed review of the history of such releases, and a rationale for determining which types of releases are enforceable, and which are not. Generally, a prospective release may not relieve grantee of any obligation to meet even a rudimentary standard of care. If Santa Barbara had written its release to relieve it of liability for simple negligence, the release probably would have been valid. But it wrote it too broadly, to release it from any negligence, even gross negligence or recklessness. That was too much for the Court.

Big pigs get slaughtered ... The takeaway - write your release to be reasonable, or a court may ignore all of it.

Big pigs get slaughtered… The takeaway – write your release to be reasonable, or a court may ignore it.

In other words, little piggies go back to the trough, but big piggies get slaughtered.

City of Santa Barbara v. Superior Court, 62 Cal.Rptr.3d 527, 41 Cal.4th 747, 161 P.3d 1095 (S.Ct.Cal., 2007). The City of Santa Barbara provided extensive summer recreational facilities and activities for children, including a camp for children with developmental disabilities called Adventure Camp. Katie Janeway, who suffered from cerebral palsy and epilepsy participated in the camp. Swimming activities were held on two of five camp days each week in a City swimming pool.

The application form for Adventure Camp included a release of all claims against the City and its employees from liability, including liability based upon negligence, arising from camp activities.

Katie’s mother signed the release in 2002, as she had in prior years. She also told the City about Katie’s disabilities, specifically that the girl was prone to seizures in the water, and that Katie needed supervision while swimming. The City knew the child had suffered such seizures in the past, and camp administrators took special precautions during the Adventure Camp swimming activities in 2002, assigning a special, trained counselor to keep Katie under close observation during the camp’s swimming sessions.

Pants came back from the cleaners with a hole? read the fine print on your claim ticket. There's probably a waiver there.

Pants came back from the cleaners with a hole? Read the fine print on your claim ticket. There’s probably a waiver in there somewhere.

Katie participated in the first swimming day at the 2002 Adventure Camp without incident. On the second swimming day she drowned. About an hour before drowning, Katie had suffered a mild seizure that lasted a few seconds. Her counselor observed the seizure and sent another counselor to report the incident to a supervisor. The supervisor said that the report never was received. Katie’s counselor watched her for 45 minutes following the mild seizure, and then — receiving no word from her supervisor — let Katie go ahead with swimming. Malong concluded that the seizure had run its course and that it was safe for Katie to swim. As Katie dove into the water for the second time that day, the counselor momentarily turned her attention away from Katie. When she looked back no more than 15 seconds later, Katie had disappeared. After the counselor and others looked for Katie for between two and five minutes, an air horn blew and the pool was evacuated. Lifeguards pulled Katie from the bottom of the pool, and she died the next day.

Katie’s parents filed a wrongful death action alleging the accident was caused by the negligence of the City. Relying upon the release, the City moved unsuccessfully for summary judgment. Failing in this, the City appealed, and the appellate court denied the petition, holding the agreement was effective and enforceable insofar as it concerned liability for future ordinary negligence, but concluding that a release of liability for future gross negligence is generally unenforceable, and the release form did not validly release any liability.

The Supreme Court granted review.

Held: The City’s release was invalid to extent it purported to apply to future gross negligence. The Court observed that “ordinary negligence,” an unintentional tort, consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. “Gross negligence,” on the other hand, is a want of even scant care or an extreme departure from the ordinary standard of conduct. A signed release absolving the City and its employees from liability for “any negligent act” in its operation of recreational program for disabled children violated public policy and was thus unenforceable, to the extent it purported to release liability for future gross negligence. Therefore, the Janeways were not precluded from pursuing wrongful death action.

Sure you can impose your waiver in the fine print ... but it's not just boilerplate. Use care in drafting it, or - better yet - spend a little money to have a lawyer do it for you.

Sure you can impose your waiver in the fine print … but it’s not just boilerplate. Use care in drafting it, or – better yet – spend a little money to have a lawyer do it for you Some things are too important for D-I-Y.

The Court said that public policy generally precludes enforcement of agreements that would remove the obligation to adhere to even a minimal standard of care. Courts may, in appropriate circumstances, void contracts on the basis of public policy, the determination of which resides first with the people as expressed in the California Constitution and second with the state legislature. Although the power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and should be exercised only in cases free from doubt, nevertheless — the Court said — courts are authorized to distinguish ordinary negligence from gross negligence, even absent express legislative authorization.

The Court grudgingly seemed to accept that waivers of liability for future ordinary negligence – at least in recreational or sports contexts – would be enforceable. However, neither California nor the overwhelming number of other states permit a waiver of liability for future aggravated negligence.

Whether this holding might have applicability before recreational and sports activities, such as in “inherently dangerous” activities such as tree removal, is up in the air. While this shouldn’t dissuade an arborist or tree removal company from including a carefully-drawn and limited waiver in the contract, neither should the professional bank on the waiver being enforced.

  – Tom Root


Case of the Day – Monday, June 1, 2020


rottentree140408When a tragedy occurs, it’s all too common to look for someone to pay for it. In today’s case, a young man, was left a quadriplegic when a healthy-looking tree standing along side a public highway fell without warning and struck his car. The trial judge was obviously moved by the sad story, and felt it his duty to open the state’s wallet.

The trial judge denied the Louisiana Department of Transportation and Development a free pass. The judge recognized that a prior holding relieved the state from the duty to inspect all sides of a tree. But he reasoned that the rule had been adopted in a case where a construction crew’s negligence had weakened the tree on the side away from the road. The trial court here reasoned that this case was different: it was natural rot, and natural rot did require DOTD to inspect all sides of a tree.

Truly a distinction without a difference! Step back and consider the implications of this holding. Besides the fact that why the tree was weakened is really not relevant to the danger it poses, the trial court’s ruling would mandate incredibly costly and time-consuming inspections. A state — even Louisiana — has a lot of highways to inspect. In Louisiana’s case, it amounts to nearly 17,000 miles of road, and a lot of trees. The costs to the taxpayers of a tree-by-tree inspection would be staggering.

A perfect illustration of a distinction without a difference.

A perfect illustration of a distinction without a difference …

The Court of Appeals made short work of the trial judge’s higher “duty.” It held that the law was clear. Where the tree appears healthy — like the one that fell on the victim — the state’s duty could be discharged in a drive-by inspection… no matter why the tree was rotten.

Walker v. State Dept. of Transp. and Development, 976 So.2d 806 (La.App. 2 Cir., 2008). Nathaniel Walker was a passenger in a vehicle being driven by Dannie Evans on Louisiana Highway 71, when a large oak tree fell on the car. Nathaniel was left a quadriplegic, albeit one with a good lawyer. He sued Dannie, Allstate Insurance and the State of Louisiana Department of Transportation and Development.

Among other things, Walker alleged the oak tree that fell on the vehicle was on the highway right-of-way in violation of highway safety regulations, that DOTD had prior knowledge that the tree needed to be removed and that DOTD failed to inspect the right of way. DOTD moved for summary judgment, arguing that Nathaniel couldn’t any facts in support of his allegation that DOTD had prior knowledge that the tree needed to be removed. DOTD supported this claim with an affidavit from one of its maintenance superintendents who had conducted an inspection of the area in question two weeks before the mishap. The state agency argued that under the law, it owed no duty to motorists traveling on state highways to check for damage on all sides of trees that abut state roadways. The trial court denied summary judgment to DOTD, because the damage to the tree in this case was a result of natural rot as opposed to third-party operated construction equipment. The trial court stated that despite the holding in a prior case – Caskey v. Merrick Const. Co. – the distinction as to how the tree was injured imposed a greater duty to inspect on DOTD.

DOTD appealed.

Held: DOTD won, and Walker’s case was dismissed. The appellate court said in order to recover damages from DOTD, Walker had to prove that the state had ownership or control of the tree which caused the damage; the tree was defective (that is, it created an unreasonable risk of harm); the state had actual or constructive knowledge of the defect and failed to take remedial procedures within a reasonable amount of time; and the state’s failings led to the injurie Walker suffered.

Now this is a distinction without a difference ...

… as is this.

No one contested that DOTD had control over the rotten oak tree, that the rotten oak tree was defective, and that the rotten oak tree caused Walker’s injuries. Instead, the Court held, the primary issue was whether DOTD had actual or constructive knowledge that the tree was rotten. The condition that caused the oak tree in question to fall was visible only on the back side of the tree, out of sight of DOTD inspectors who passed by on the road. There was no genuine issue as to the location of the rotten area in question, or whether the rotten area in question was observable from the roadway. Additionally, the photographs taken at the accident scene reveal that the oak tree was otherwise healthy, containing a full canopy of green leaves.

The Court said that DOTD’s duty to protect against the risk of a tree falling onto a highway required it to inspect for dead trees and remove them within a reasonable time. The state was not required, however, to inspect every tree that conceivably could fall on the road or to remove trees simply because they had the potential to fall onto the road.

In Caskey, the court held that DOTD inspectors had no duty to walk around all sides of the tree and check for damage, particularly when the tree is otherwise green and healthy. The trial court in this case imposed a greater duty on the state than the law required. The Court of Appeals ruled that the trial court’s incorrect determination – that a different duty exists when the defect results from natural causes as opposed to artificial causes – was a contradiction of the law, a distinction without a legal difference.

– Tom Root