Case of the Day – Thursday, November 20, 2025

Posted on November 20, 2025 by TLRoot tagged.

SIR, YOU ARE NO GEORGE WASHINGTON

Today, we conclude our consideration of the trespass problems faced by our New Hampshire landowners Larry and Laura Littoral. If you have followed along to this point (and can remember what transpired even after the news broke that Kim Kardashian did so well in the California bar exam that she has been invited to take the second half next year), you know that the Littorals’ pastoral cottage getaway – situated on a classic New England pond – has been disrupted by neighbor Wally Angler.

Compared to Wally, Donald Trump would prefer Nancy Pelosi as a neighbor. Wally – a NINO (neighbor-in-name-only) – is an angler, and asked the Littorals to chop down some dead trees on their property to create a trout habitat in the pond for the primary (and sole) purpose of adding to Wally’s piscatorial pleasure. You can hear him now: “Thanks for all the fish!”

The Littorals preferred that their dead timber remain standing. When Wally asked them to cut down the trees, they said, “So long,” refusing to dump their tree into the pond. Apparently reasoning that it’s easier to ask forgiveness than permission – especially where permission has already been denied – Wally then took advantage of the Littorals’ weekend absence by bringing in a tree service to cut the trees down for him. According to the Littorals, Wally affirmatively misled the tree cutters that the dead trees were on his property, and the tree service cut down the timber with alacrity.

For the record, Wally denies having anything to do with the felling of the dead trees. He seemingly maintains that he turned around one day, and mirabile dictu, the trees were on the ground. If George Washington had tried a similar woof story on his father about a downed cherry tree, we’d probably all be speaking English and enduring a manchild national leader whose conduct is concerning for dementia. As every schoolchild knows, however, Little George ‘fessed up, telling his father, “I cannot tell a lie.” Channeling Lloyd Bentsen, our observation is this: Wally, we served with George Washington, George Washington was a friend of ours. Wally, you’re no George Washington.

Our analysis this week has assumed that unless Wally can produce the elves responsible for the tree cutting (and their saws), the Littorals will easily meet their burden of proof.

So far this week, we have concluded that the Littorals may bring a double-barreled complaint, alleging a statutory violation of New Hampshire’s trespass-to-tree statute, R.S.A. § 227-J:8, and a common-law trespass count. The § 227-J:8 count carries some rather serious penalties, from three to 10 times the market value of the trees. The catch is that the penalties must be based on a multiple of market value. Market value may be the stumpage value of the wood – what it is worth on location to a lumber buyer – or on the cost to replace the tree, minus transportation and planting costs.

We’re assuming for the sake of this column that a few dead trees probably are not going to have much stumpage value. The Littorals could find an expert to establish how much replacement of the trees would cost, but replacement value has traditionally been used because everyone assumes that the destroyed trees would have continued to flourish but for the actions of the defendant. Here, the defendant’s expert would have a good argument that those trees were going to fall in the next strong wind anyway, and awarding the Littorals new live trees to replace their old dead ones would give the plaintiffs a “windfall” for what was only windfall to begin with.

Wally suspects elves.

Given Wally’s underhanded approach to getting what he wanted (and what the Littorals did not want), we don’t have much trouble with the Littorals receiving a windfall. The law in New Hampshire and elsewhere does, however, hold instead that damages should be limited to compensating for the actual injuries suffered. For that reason, the Littorals can take the confluent approach that under the common law of trespass, their real property has suffered a decrease in value because of Wally’s conduct, both because of where the dead trees are no longer standing and because of where they are currently laying.

Even then, the Littorals might have a problem because the usual assumption underlying damages for loss of trees is that standing timber will continue to stand for the indeterminate future. That assumption may be challenged where the standing timber is already dead. Nevertheless, there is ample evidence that dead trees standing have value. As we noted the other day, dead trees provide shelter or sustenance to over 40 percent of all birds, to amphibians, and to lichens and moss. Dead trees create “snow fences” that slow wind-driven snow. The snow that is trapped melts in place and saturates the ground, providing additional moisture to live trees. Dead trees create hiding cover and thermal cover for big game as well.

Even more counterintuitive, dead trees – after dropping their needles and bark – may reduce fire hazard. Their flammability is greatly reduced compared to green trees containing flammable resins.

In the Connecticut decision we’re examining today, the plaintiff relied on standing dead timber to help maintain privacy from his neighbor. The court appeared to recognize that the elimination of the standing dead trees contributed to a substantial diminution of her property value, even while acknowledging that the trees themselves had no value. It’s not a New Hampshire case, but then there is a dearth of cases nationwide where the wrongfully cut trees were ornamental in nature and yet very dead even before tasting the ax. We were glad enough to find this one. The decision suggests that an action alleging loss of privacy may be the strongest case of all.

Caciopoli v. Lebowitz, 131 Conn.App. 306 (Court of Appeals, Connecticut, 2011). Dominic Caciopoli was a man who liked his privacy. He bought his place because it was isolated and private, surrounded by forest on all sides except for one area of the lot through which his driveway passed. A short while later, Jeffrey Lebowitz bought the place next door. His house was about 100 yards from Dom’s, and the area between the residences was wooded, affording each privacy from the other.

A few months after moving in, Jeff hired a tree service to clear standing dead trees from the wooded area between the two homes. Jeff believed the dead trees were on his land, but he didn’t check that carefully. The tree service removed all the dead timber, both standing and on the ground, some small saplings, and a few larger trees to provide more sunlight and enlarge the areas surrounding his house. Of course, it turns out that virtually all of what was cut really belonged to Dom.

When Dom came home to find that his natural privacy barrier had been clear-cut, he was not happy. He went to Jeff’s front door and expressed his displeasure, pointing out the actual property line in the process. Nevertheless, the next day, the tree service returned and finished the job. The removal of the trees and brush left Jeff with an unobstructed view of Dom’s house.

Jeff tried to make amends. He sent Dom a letter admitting his error and planted some trees on Dom’s property to replace what had been taken. Dom was not happy with the results and undertook his own extensive landscaping project in a failed attempt to restore his lost privacy.

Give a man a fish, and feed him for a day. Give a man a chainsaw, and watch trouble ensue.

Dom sued Jeff for common-law trespass and for treble damages pursuant to Connecticut General Statutes § 52-560 (the Connecticut adjunct to R.S.A. § 227-J:8). The trial court found that Dom had proven the elements of an intentional trespass action and awarded him $150,000. for the diminution in the value of his property caused by the trespass. Notably, the trial court declined to award any damages for the value of timber that had been removed.

Jeffrey Lebowitz appealed, alleging a lot of infirmities with the trial judgment. Of interest to the Littorals is Jeff’s appeal of the damage award.

Held: The trial court’s award of $150,000 was proper. The trial court found that after the cutting, Dom’s place was worth $675,000, according to an appraisal performed by a certified general real estate appraiser. The appraiser opined that prior to the cutting, Dom’s market value was $825,000. The Court of Appeals noted that Jeff could have presented his own expert testimony on the diminution of value, but he did not. Applying the ancient legal doctrine, et dormiat, ne perdatis (“you snooze, you lose”), the court said Dom’s expert was found to be credible and competent, and absent Jeff making an expert showing at all, that was good enough.

But, Jeff complained, Dom’s expert was not qualified to give an opinion as to the effect of the removal of certain trees from Dom’s property on its market value. He argued the expert had no relevant experience and was considered an expert only because she had a real estate appraiser’s license. However, the Court of Appeals said, the trial court relied on the fact she had conducted 1,500 appraisals before, and when the trial judge asked her whether she was able to testify as to the value of the property before and after the removal of the trees, she said she could. (This is rather like finding that she was an expert because she asserted she was, a rather bizarre ipse dixit, but the Court of Appeals was loathe to disturb a verdict and thus give Jeff a second bite of the apple on remand).

Jeff also argued that the court made no finding whether there was an adequate factual foundation for a “retrospective appraisal” – an appraisal after the fact of the value of the property before the cutting – and that Dom did not ask the court to find there was an adequate foundation for allowing the opinion evidence. The Court of Appeals pointed out that it was Jeff’s burden to object to the testimony on those grounds at the time of trial. Again, et dormiat, ne perdatis. The expert testified she visited the property in January and February 2009 and had determined the lot enjoyed a high degree of privacy prior to the incident. She also had studied photographs of the lot prior to the trespass and after the trespass, and noted that the pictures depicted more clearing of trees than she had imagined, thus strengthening her opinion as to diminution in value.

No one contests that trees in the water are a good habitat for fish… but Wally should have used his own trees.

The Court observed that Jeff pointed to no authority to suggest that the expert’s personal observation of the property, her reliance on the plaintiff’s descriptions of the prior conditions of the property, and her review of photographs of the property in its prior conditions, was insufficient to form an inadequate factual foundation. The Court said the expert’s personal observation of the property “complemented by the plaintiff’s descriptions of the property in its prior conditions, is not impermissibly speculative…” After all, the Court said, Dom – as the owner – was undoubtedly familiar with his property (if perhaps lacking disinterest in the outcome), and no one was more competent than he to describe to the expert what it had looked like before the cutting.

The Court held that the fact that the expert “could not give a logical explanation for how she arrived at her opinion and did not articulate or apply methodology suitable to determining any diminution in value caused by the clearing of trees” was not fatal to her testimony. She testified that she examined real estate in the area, found comparable properties, estimated degrees of privacy and made adjustments, positive or negative, for the differences in the properties in order to “equal everything out.” She also noted that an appraisal is not based on science, but it is just an opinion as to value, and the Court accepted that.

Jeff had to pay the $150,000. That’s a lot of money for some dead trees that had no stumpage value.

– Tom Root

Case of the Day – Wednesday, November 19, 2025

Posted on November 19, 2025 by TLRoot tagged.

SOMETIMES PLAIN VANILLA TASTES PRETTY GOOD

Today, we continue to examine the situation faced by our Granite State tree victims, Larry and Laura Littoral. If you read yesterday’s post prior to your third Arnold Palmer martini, you recall that the Littorals have both a cottage on a pond – which is beautiful –and a pesky neighbor, Wally Angler – who is not so beautiful.

Fisherman Wally’s entreaties to the Littorals that they cut down some dead trees on their property, dropping them into the pond where they will provide a habitat for the fish Wally loves to catch, fell on deaf ears. It seems the Littorals liked the contribution the standing dead timber made to their cottage ecosystem. So when the Littorals were absent one fall weekend, Wally took matters into his own hands, hiring a tree service to cut down the trees. Wally, of course, denies having any role in the tree’s mysterious felling, but for the sake of our analysis – and because we recall Marcus Tullius Cicero’s incisive question, cui bono? (that is, “who benefits?”) – we reasonably assume that proving Mr. Angler was the only guy with the motive, opportunity and means to cut down the trees will be child’s play.

Yesterday, we considered New Hampshire’s trespass to trees statute, R.S.A. § 227-J:8, which has been around in some form since the early 19th century. It’s a pretty solid statute, providing that no person shall negligently cut, fell, destroy, injure, or carry away any tree or part thereof on the land of another person. If someone violates the statute, he or she is liable for a forfeiture to the aggrieved landowner of anywhere from three to ten times “the market value of every such tree, timber, log, lumber, wood, pole, underwood, or bark cut, felled, destroyed, injured, or carried away.”

Notice that we used quotation marks in the foregoing paragraph. They’re there for a reason. You see, the rub in 227-J:8 is that the statute turns on the market value of the trees. That worked very well when the kind of timber trespass going on was limited to a lumberman taking a thousand trees from the wrong side of the boundary marker. Indeed, that was precisely the kind of conduct at which the statute was aimed. But 227-J:8’s a tougher fit where only two or three trees are cut, not for their market value but rather for some noncommercial reason. The Littorals could sue under 227-J:8, but what would the market value be of a few dead trees (or even a few live ones)?

In a stretch perhaps dictated by necessity, below we discuss a case before the New Hampshire Supreme Court held that “market value” may be measured as the cost of a replacement tree of comparable value. Sadly, even that might not get the Littorals very far. Such an analysis would bring them fairly quickly back to a measure of the fair market value of the dead tree itself. To get any traction, the Littorals have to get beyond the value of the dead tree qua tree, and instead find a measure of damages that focuses on the value of the dead trees to the property. We’ll be looking at that tomorrow, but for now, we need some legal vehicle that will let them be compensated adequately for Wally’s selfish attack on their property.

Fortunately, the common-law remedy of trespass continues to enjoy vitality in New Hampshire. Assuming the Littorals lost three dead trees, and assuming that they could find an expert who would testify that the stumpage value of those trees was $300.00 apiece, they would not quite get to $1,000.00 in damages (before 227-J:8’s multiplier was applied). But the three trees – referred to in the tree law world as “ornamental trees” – were worth much more to the Littorals (and their real estate).

Common-law trespass – the “plain vanilla” tort still tastes pretty good.

Where the trees lost are not commercial timber, but rather trees with aesthetic or some other specialized value, New Hampshire courts will permit the injured party to sue in trespass, and for damages to show either that the market value of the real estate has fallen because of the loss or that the cost of replacing the lost trees rises to some ascertainable figure.

Here, although the Littorals are entitled to (and will probably want to) include an R.S.A. § 227-J:8 claim, they will also want to allege the good old plain-vanilla tort of trespass, showing that Wally’s transgression damaged their property as a result. After all, New Hampshire lets the injured homeowner include both the time-tested common-law trespass claim and an R.S.A. § 227-J:8 claim in the same complaint. Common-law trespass may be plain vanilla, but it’s survived as a cause of action for centuries because it works.

The Littorals report that they have evidence that Wally moved the iron-pin boundary markers before the tree service arrived, so as to fool otherwise cautious tree workers that he owned the land on which the dead trees in question stood. As it is in most states, moving property markers is a misdemeanor in New Hampshire, not to mention being pretty compelling evidence of the willfulness of Wally’s conduct. Indeed, in most places, this would probably be enough to win punitive damages against Wally, which are extra amounts meant not to compensate a plaintiff for his or her injury, but rather to exact a pound of flesh from the misbehaving defendant.

Burning a beer at the stake? Now that would be a “monstrous heresy.”

But New Hampshire isn’t “most places.” Rather, “the punitive function of exemplary damages has been rejected in forceful and colorful language” by the New Hampshire Supreme Court. “‘The idea is wrong,” the Granite State Supremes thundered well over a century ago. “It is a monstrous heresy. It is an unsightly and an unhealthy excreascence, deforming the symmetry of the body of the law’.”

Fortunately or otherwise, modern New Hampshire jurists have left their aggrieved litigants an out. While punitive damages are forbidden, the courts agree that in cases “where the acts complained of were wanton, malicious, or oppressive, the compensatory damages for the resulting actual material loss can be increased to compensate for the vexation and distress caused the plaintiff by the character of defendant’s conduct.”

So if the Littorals sue for trespass, and show that the trespass and subsequent loss of their trees resulted because Wally was a guy who charged ahead fully aware he was in the wrong, their compensatory damages may rise well beyond even what they could get even if the court set the R.S.A. § 277-J:8 multiple at 10 times the market value of the dead wood.

But we’ve still left the question of exactly how much a dead tree is worth, either as marketable timber or for aesthetic purposes. We’ll take up that problem tomorrow.

Woodburn v. Chapman I, 116 N.H. 503 (New Hampshire Supreme Ct., 1976); Woodburn v. Chapman II, 117 N.H. 906 (New Hampshire Supreme Ct., 1977). Chapman removed a single maple tree, 18 inches in diameter, which stood on Woodburn’s land. He never imagined that cutting down one tree would result in two trips to the New Hampshire Supreme Court. But it did.

The trial evidence showed replacement of a 30-inch maple would cost $3,600.00. Taking this figure and applying a treble multiplier taken from the tree trespass statute, the court entered judgment for $10,805.00 in favor of Woodburn.

Chapman appealed.

Held: In Woodburn I, the Supreme Court held that the trial court’s use of the tree’s replacement cost as the basis for the statutory penalty was wrong. The Court admitted that “in some circumstances, replacement cost may be the proper measure of damages for the destruction of a tree.” But the tree trespass statute (then R.S.A. § 539:1, replaced later with R.S.A. § 227-J:8) “takes the value of the tree by itself,” the Court said. The severity of the statutory penalty varies with the tree’s productive quality. Indeed, the whole purpose of the statute is to protect marketable resources.

The Court held that “where a tree confers other benefits on the plaintiff in the enjoyment of his property, he may join a count for compensatory damages with his count to recover the statutory penalty. The ordinary measure of damages in these circumstances is the difference between the value of the land before the harm and the value after the harm. In this case, the plaintiff introduced evidence of special circumstances which might justify the award of the replacement cost of an eighteen-inch maple.”

On remand, Woodburn’s expert testified that the tree’s value by itself was $2,173.00. He arrived at this figure by deducting from the tree’s replacement cost the expenses associated with digging, transporting and replanting the tree, resulting in an estimate of the value of the tree itself. The trial court accepted the evidence and awarded treble the amount as a penalty.

On appeal from the remand, Chapman complained that the base figure from which any statutory penalty is to be calculated must be stumpage value. He argued that the statute is designed to protect marketable timber, and thus only the tree’s value as timber should be used in computing the penalty. Since Woodburn produced no evidence of the tree’s stumpage value, Chapman complained, there can be no recovery under the statute.

The Littorals should have gotten this sign with special wording, “And don’t cut down our trees, Wally, whether they’re dead or not!”

The Supreme Court disagreed, holding that the statute applies to “whoever shall cut… any tree…” The statute’s application is not restricted to trees with stumpage value. Instead, the statute applies to any tree, whether its value is as timber or some other marketable commodity.

So, the Court said, where the tree is valuable only as timber, stumpage value should be used to assess the penalty. But, “this rule obviously cannot be applied to fruit, shade, and ornamental trees which have a measurable value but no stumpage value.” In this case, the Supreme Court ruled, the trial court “determined the value of the tree by subtracting from its replacement cost the cost associated with digging, transporting and planting the tree. This was an appropriate method of arriving at the ‘value of the tree by itself’.”

Additionally, Woodburn introduced evidence that the tree had special value to the real property as a boundary marker. That, the Supreme Court ruled, warranted the trial court’s award of $577.00 as compensatory damages in addition to the statutory penalty.

– Tom Root

Case of the Day – Tuesday, November 18, 2025

Posted on November 18, 2025 by TLRoot tagged.

A FISH STORY

A longtime supporter of ours from New Hampshire wrote to us recently to recount the travails of his friends, Larry and Laura Littoral. They keep a cottage on one of New Hampshire’s many delightful ponds. Unfortunately for the Littorals, they have a neighbor, Wally Angler, who is both an avid fisherman and a pain in the fundament.

(These are pseudonyms, of course, and we hope you admire our creativity).

Dead trees are not always eyesores…

Wally has been badgering the Littorals to cut down several dead trees on their land. It’s not that the trees pose a threat to life and limb (they don’t), but rather Wally believes that if the dead timber falls into the pond, it will provide an excellent habitat for trout (and, in the process, benefit Wally’s favorite pastime). Larry and Laura like their property the way it is, believing that dead but standing timber is an important part of the ecology of the place, providing sustenance for woodpeckers, shelter for martens, snow fences in the winter, and beauty for nature lovers.

There are two observations worth making here. The first is that, although this may seem counterintuitive, abundant evidence suggests that standing dead timber, which otherwise does not pose a hazard to people or property, has considerable value to the ecosystem. The second is that even if the standing dead trees are of no value to the woods, the Littorals are creating no risk to anyone by keeping the trees standing on their property, and if they like the denuded trunks where they are, the couple should be entitled to letting the dead trees stand.

Recently, the Littorals enjoyed a weekend getaway. At least, they enjoyed it until they returned to their cottage to find the dead trees mysteriously cut down and lying in the pond. Had Horatio been there, he might have said, “O day and night, but this is wondrous strange!” But to the Littorals, unhappy as they were, it didn’t seem strange at all. And they didn’t have to look far for a suspect.

Is that the "Bart Simpson defense" we're hearing?

The”Bart Simpson defense”clashes with Occam’s Razor.

They complained to the local constabulary, who spoke to Wally. He, of course, denied it, but the Littorals have figured out who Wally hired to cut down the trees, and even deduced that Wally moved the boundary line iron pins to trick the tree service into believing that the trees were Wally’s.

The Littorals are hopping mad, but they don’t want to hang an unsuspecting tree service out to dry. They wonder what action they might have against Wally, and whether the tree service will get nicked in the crossfire. Finally, they note that the local ordinance requires a permit to cut trees within 50 feet of a shoreline, grant of which depends on vegetation remaining or being added to maintain a measured level of trees and ground cover in the area. Unsurprisingly, no one bothered to apply for a permit.

Whew! It’s a veritable tree law final exam. Today, we’ll tackle the first (and easy) question: what kind of lawsuit do New Hampshire statutes permit the Littorals to bring?

At common law, what we’re looking at here is garden-variety trespass, often called in cases like this “trespass to trees” or “trespass to timber.” It appears, however, that New Hampshire has helpfully reduced the action to statute. Section 227-J:8 of the New Hampshire revised statutes provides that

I. No person shall negligently cut, fell, destroy, injure, or carry away any tree, timber, log, wood, pole, underwood, or bark which is on the land of another person, or aid in such actions without the permission of that person or the person’s agent.

II. In addition to any other civil or criminal penalty allowed by law, any person who violates the provisions in paragraph I shall forfeit to the person injured no less than 3 and not more than 10 times the market value of every such tree, timber, log, lumber, wood, pole, underwood, or bark cut, felled, destroyed, injured, or carried away.

Simply put, the Littorals have a nice statutory remedy here. Where most state law wrongful cutting statutes provide for treble damages, New Hampshire courts can hammer unlucky defendants for up to 10 times the value of the timber.

What’s more, while the statute on its face seemingly applies only to negligent cutting – not to intentional pure-d mean cutting like what occurred here – New Hampshire appears to apply the statute to any wrongful cutting, employing the 3-10x scale provided by RSA 227-J:8 as an analog punishment gauge, with higher multipliers reserved for more egregious conduct.

The case we examine below involves a New Hampshire timber trespass that exhibits some of the same kind of chutzpah shown by Wally Angler (assuming the Littorals can prove he’s the culprit, which we believe is likely). The brazen willfulness shown by the defendant below – which was not much different from Wally’s intentional trespass – clearly influenced the damages awarded.

Tomorrow, we’ll explore whether the Littorals can bring a common law trespass action in lieu of proceeding under the statute. Then, of course, we’ll have to grapple with the thorny damages question: exactly how much is dead standing timber worth, anyway?

Today’s case:

McNamara v. Moses, 146 N.H. 729 (Supreme Ct. N.H. 2001). Marilyn McNamara lived in Eagle Rock Estates, a residential subdivision in Amherst. The subdivision plans show an easement for access to the lot of her neighbor, attorney Bob Moses, as a shared driveway connecting the lot with the street. The driveway is steep, winding, and tough to use during the winter. As a result, since 1977, Bob and other residents have used an unpaved roadway behind the lots that they call Eagle Rock Drive, for easier access to their lots. Until 1998, everyone believed Eagle Rock Drive was on common land owned by the Eagle Rock Estates Association.

Marilyn bought her place in 1997. Even she believed Eagle Rock Drive was on common land that abutted the rear of her property. However, after someone proposed paving Eagle Rock Drive, Marilyn researched the matter and found Eagle Rock Drive actually traversed her lot. She announced this at an Association meeting, whereupon Bob Moses told her the Association members had adverse possession of the roadway.

Marilyn tried to get along, giving Bob written permission to use Eagle Rock Drive for the time being but urging him to upgrade his driveway soon and begin using it instead. She warned him that she would not agree “to pave the roadway under any conditions.”

In December 1998, Marilyn found one of Bob’s workmen cutting trees along the roadway on her property. The workman said he was preparing the road for further work at Bob’s request. Marilyn told him the property was hers, she had not given permission to cut the trees, and he should stop cutting and leave. When Marilyn’s joint owner, Bill Vargas, met with Moses later that day, Moses said that “he owned the road,” and asked, “What are you going to do about it?” Marilyn quickly lawyered up and told Bob as much in a letter.

The following Sunday, Marilyn and her beau returned from a weekend away (as did Larry and Laura Littoral), to discover that Bob Moses’ contractor had regraded the roadway and widened it by 5 feet. In so doing, Bob’s people cut down at least 12 of Marilyn’s birch and pine trees that did not interfere with passage over the roadway.

The dead trees are now “in” Golden Pond.

Marilyn sued to enjoin Bob from using Eagle Rock Drive and for damages and penalties for unlawfully cutting her trees. The trial court concluded Bob had a prescriptive easement to use the roadway to access his lot, but held that cutting Marilyn’s trees to widen the roadway had been an unreasonable use of the easement. The court awarded Marilyn compensatory damages of $1,200 – the market value of the trees cut in the widening – and penalties of five times that amount ($6,000) under RSA 227-J:8.

Bob appealed.

Held: The Supreme Court upheld the damages and penalties.

Bob argued the trial court erred in awarding damages based on speculation or approximation of the value of the trees. The Court rejected the argument, noting that the “speculative” nature in this case was not the prohibited kind, that is, whether a particular loss has been or will be incurred. Instead, the only speculation was how much damage had been caused, that is, the possible valuation of an actual loss.

The trial court awarded compensatory damages of $1,200 for the 12 lost trees, specifically finding that Marilyn’s estimated value of $100 per tree was “reasonable and, if anything, conservative.” The fact that McNamara did not identify each tree by species when testifying as to the average value of the felled trees may have made her showing kind of light, but that “does not render the court’s finding erroneous, particularly in light of the defendants’ decision neither to cross-examine her nor to offer contrary testimony. Finally, the mere fact that the plaintiffs’ estimate of the value of the trees was an approximation is not fatal.”

Bob also contended that the trial court abused its discretion by awarding five times the value of the felled trees as the penalty for violating RSA 227-J:8. The Court suggested that Bob’s own arrogance was an appropriate factor in setting the multiplier:

The record supports the court’s finding that the defendants willfully caused the cutting of trees on the plaintiffs’ property, thereby amply justifying a multiplier at the low end of the range specified in the statute. In particular, in addition to being informed at the May 1998 association meeting that the land in question was owned by the plaintiffs, when questioned as to whose land he thought he had been driving across prior to the meeting, Mr. Moses responded, ‘I didn’t know, other than I knew it wasn’t mine.’ The court’s assessment that the cutting on the plaintiffs’ land was intentional was also supported by testimony that, when [Marilyn’s joint owner] Vargas confronted the defendants on the afternoon of the cutting, their responses were, respectively: ‘what are you going to do about it?’ and a statement that Mrs. Moses would ‘continue the rest of the clearing herself with her own chainsaw.’ Moreover, after having been informed that they did not have permission to clear the land further, the defendants continued the clearing three days later when the plaintiffs were out of town.

The Court also noted that while maintaining the easement by keeping the road free of brush and overhanging limbs was within Bob’s rights, expanding the roadway by five feet was not.

– Tom Root

Case of the Day – Monday, November 17, 2025

Posted on November 17, 2025 by TLRoot tagged.

GOTTA LOVE THE INTERNET

Time was that the older you got, the more your early memories morphed into wispy tendrils that may have been true, may have been dreams, may have been whole-cloth fiction, but could never be verified.

Not with the Internet around. When I was reading today’s case, something caused me to think I remembered an old ditty from Captain Kangaroo about a railroad running through the middle of a house. I’ve recalled it before, thinking about what kind of an ironclad easement must have let the Capital Limited thunder between the sofa and Barcalounger. But I never really knew whether I recalled the song, imagined the song, or made it up one night 60 years ago.

But the Internet never forgets. It only took about 60 seconds to find “The Railroad Runs Through The Middle of the House,” a 1956 hit written by Bob Hilliard and recorded by Rusty Draper and Vaughn Monroe (independently of each other).

To be sure, the song is imprecise. The railroad probably did not buy the land, but instead simply got a right-of-way through the house. The premise is undoubtedly apocryphal, but the nature of a right-of-way – which is an easement on steroids – confuses a lot of people. Just ask the woman in the street who owns the gap of grass between the sidewalk and street (we Midwesterners call it a “tree lawn”).

Most people think the city or county owns it. Not so. The abutting landholder owns all of the land to the centerline of the street, subject to the government owning the right-of-way and doing pretty much whatever the hell it likes within the right-of-way (consistent with the purpose of said R-O-W).

In today’s case, county employees cut down trees standing in the right-of-way of a road, because overhanging branches were affecting motorists. The landowner complained that those were his trees, and the county had no right to destroy them. Imagine a track crew rolling through your family room and removing a chandelier because it hit the tops of boxcars. That’s how Jeff felt.

Alas, the trees were within the county’s R-O-W, and – while the Court did not state the obvious – overhanging branches interfered with the use for which the R-O-W was granted, which was a highway.

Alberhasky v. Johnson County, 670 N.W.2d 430 (Iowa App. 2003). The owner of the property abutting a county road brought an action against the County following the removal of trees from his property in order to improve the road right-of-way. The county engineer claimed that the trees formed a canopy over the road that obstructed larger vehicles and kept the dirt road from drying out.

All of the trees removed from Alberhasky’s side of the road were within the county’s right of way. The trial court told the jury that if trees were removed outside the county’s right-of-way, jurors should return a verdict for Alberhasky.

The jury found for Johnson County, and Alberhasky appealed.

Held: The county acted within its rights under Iowa Code § 314.7.

The Court acknowledged that Jeff, as an abutting landowner, owned the land to the centerline of the road subject to the easement rights of the defendant. It agreed that county employees in charge of maintenance work on a county road cannot enter property adjoining the right of way to remove or injure trees located on that property without the landowner’s permission, but they may lawfully remove trees in the right of way or branches of trees that overhang the right of way.

Despite a state policy in favor of trees expressed in Fritz v. Parkison, the facts submitted to the jury established that tree branches regularly struck the equipment used to maintain the road, breaking mirrors, antennas, lights and scraping paint. School buses could not go down the road because tree branches scraped the yellow warning lights off the tops. In one case, a fire truck was unable to use the road, requiring an extra 4-mile trip and resulting in the loss of a building. The trees removed included dead elms, mulberries, cedars and others of varying sizes.

The Court of Appeals held that trimming back the branches offered an inadequate solution, since branches grew back and had to be trimmed frequently. Removal of the trees, it said, was the only long-term solution.

– Tom Root

Case of the Day – Friday, November 14, 2025

Posted on November 14, 2025 by TLRoot tagged.

I THINK, THEREFORE I OWN

My wonderful and sainted Latin teacher, the late Emily Bernges of Sturgis, Michigan, would have shaken her head in dismay, correcting me that I should say, Cogito, ergo sum.

Non hoc tempus, Mrs. Bernges. That was that Descartes fellow who said that. Today’s case departs from his admittedly excellent philosophical proposition, being more in the vein of, “I think it’s mine. Therefore, it is mine.” The facts are kind of pedestrian: two rectangular home lots, with the owner of one, Dolfo Otto, suffering the real estate version of “mission creep.” His mowing, trimming and planting expanded incrementally until what he thought was the boundary between the parcels had wandered several feet into the neighbors’ yard. Being a green thumb kind of guy, Dolfo planted a row of maples to mark what he thought was the property line. The trees served a boundary purpose, and Dolfo liked how they looked.

The neighbors changed over the years, and whatever institutional knowledge the earlier ones may have possessed about the original property line was lost. So it was well over 20 years after the Cornells, the latest owners of the place next door, had a survey done. They discovered that the strip with the maple trees did not belong to Dolfo at all. Dolfo, surprised at the situation, dug in his heels, got a lawyer and sued to quiet title in his favor because he had adversely possessed the land all those years.

Belatedly trying to assert dominion over land he never knew he owned, neighbor Richard Cornell cut down Dolfo’s maples. This unwise escalation of the existing tension only threw legal gasoline on the fire. Courtroom hijinks ensued.

What I found particularly interesting about this case was that while mowing and general upkeep of a piece of property generally is insufficient to establish possession, the Court found that Dolfo’s planting and nurturing four maple trees was more than enough to establish his possession of property to which he held no title. I guess that when your trees set down roots, so do you.

Otto v. Cornell, 119 Wis.2d 4 (Wis.App. 1984). Dolfo Otto owned a 50’ x 150’ lot next to a similar lot owned by Richard and Dorothy Cornell. Dolfo Otto had maintained a fence on what he believed was the southern boundary of his lot for many years prior to 1945. That year, he removed the fence and planted four maple trees to mark the boundary. Since then, Dolfo mowed and maintained the lawn around the trees and to the north.

The house next door was rented to the Wilsons in 1949. Their driveway was located close to the maple trees. When Mrs. Wilson hit one of the trees with her car and destroyed it in 1951, Dolfo replaced it.

The Cornells bought the next-door lot in 1963. After the land was surveyed 16 years later, the Cornells first realized that the true lot line between their lot and Otto’s lay some feet north of the line on which Dolfo had planted the trees. Dolfo refused to accept the survey results, and in 1980, he sued to establish his title to the property up to the tree line. A few months later, Richard Cornell cut down Dolfo’s four maple trees.

The trial court found that Dolfo had acquired the strip of land on which his maple trees had stood by adverse possession and awarded him damages for the destroyed trees.

The Cornells appealed.

Held: Dolfo had title to the disputed property and was entitled to punitive damages.

Dolfo based his claim to the disputed property on Wisconsin Ch. 893, Stats., which allows a person who has had uninterrupted adverse possession of land for 20 years to bring an action to establish title. Adverse possession under this section requires enclosure, cultivation, or improvement of the land and physical possession that is hostile, open and notorious, exclusive and continuous for the statutory period.

“Hostility” means only that the possessor, in this case, Dolfo, claimed an exclusive right to the land possessed. The parties’ subjective intent is irrelevant to the determination of an adverse possession claim.

The requirement of continuity is satisfied by activities that are appropriate to seasonal uses, needs and limitations, considering the land’s location and adaptability to such use. The true owner’s casual reentry on the property does not defeat the continuity or exclusivity of an adverse claimant’s possession unless it is a substantial and material interruption and a reentry for the purpose of dispossessing the adverse occupant.

An adverse possession action can often devolve into a pissing contest …

Here, the Court found that the trial judge’s findings were sufficient to support its conclusion that Dolfo established title by adverse possession. The Court found he had planted ornamental trees in 1945 and 1951 to establish the southern boundary of his lot; that at all times he claimed, maintained, and occupied the land around the trees; and that he posted a thermometer on one of the trees. The Court found that the Cornells first became aware of where the boundary was located when the property was surveyed in 1979, and that Dorothy Cornell knew for 17 years before that Dolfo claimed the disputed property. The evidence showed that the Cornells never used the disputed property.

The Court of Appeals said Dolfo’s acts in planting the ornamental trees more than 25 years before the lawsuit and in maintaining the land around the trees since then constituted possession of the land by usual improvement, in the same manner that a true owner might have manifested possession of land of this character and location. Regardless of his subjective intent in occupying the land – in this case, the belief that he owned the property – Dolfo’s possession was legally hostile, open, and notorious.

As well, his possession was continuous and exclusive. The Cornells never tried to dispossess Dolfo until after he sued and his adverse possession had been established. Although the Cornells testified at trial that they had used the property and were not aware that Dolfo claimed it until the lawsuit, they also admitted that they gave conflicting answers about the extent of their claim and their knowledge of Dolfo’s claim in their pretrial depositions. Apparently, the Cornells raked leaves and their children played on the disputed strip from time to time, but these uses were casual, the Court said. It was unnecessary for Dolfo to be belligerent if his neighbors happened to step across a particular line.

The trial court awarded Dolfo the replacement cost of maple trees. The Cornells argued on appeal that damages could only be assessed based on the diminished value of Dolfo’s land as a result of the destruction of the trees.

The evidence indicated that the trees were planted in a row on a small residential lot. Dolfo maintained the lawn around the trees, and when one was damaged, he replaced it. The trees could be ornamental even though they marked a boundary. Had his sole purpose been to mark a boundary, Dolfo could have replaced the fence that existed before the trees, or he could have installed metal stakes or monuments.

The Court cited a Wisconsin Supreme Court decision in which the High Court said, “An owner of real estate has a right to enjoy it according to his own taste and wishes… yet the arrangement… of buildings and trees selected by him might be no considerable enhancement of the sale value of the premises… and the disturbance of that arrangement, therefore, might not impair the general market value… While the owner may be deprived of something valuable to him… he might be wholly unable to prove any considerable damages merely in the form of the depreciation of the market value of the land. The owner of property has a right to hold it for his own use as well as to hold it for sale…”

The same applies here. The diminished land value rule is not exclusive. Rather, Dolfo is entitled to have his land returned to the configuration that suited him.

The trial court determined that the property line went through the trees. The Cornells argued that they were entitled to credit for half the value of the tree, but the Court rejected the claim. “Regardless of where the trial court set the boundary after the trees were cut down,” the Court of Appeals said, Dolfo “possessed both the trees and the land around the trees since the time he planted them.” The trees belonged to Dolfo, and he was entitled to all the damage done to them.

– Tom Root

Case of the Day – Thursday, November 13, 2025

Posted on November 13, 2025 by TLRoot tagged.

FATHER (AND MOTHER) MAY NOT KNOW BEST

I have written before about preprinted and non-negotiable waivers of liability. You know…that dense print on your coat check receipt, or 6-point type on the form you sign at the ski resort, which says something about whatever happens to you isn’t their fault.

Whether the waiver is enforceable is a debatable proposition, with different answers depending on the facts of the case. But what about a waiver form your child brings home, something requiring your John Hancock so that he or she can go with friends to ski or rollerblade or (as in today’s case) bounce on a trampoline?

Even if you – a rational, thoughtful and risk-averse adult – can sign away your right to seek compensation from others whose negligence or worse injures you, can you give away your kid’s right to do so?

The Kentucky Supreme Court, in a decision that is a little creepy in its “big brother” approach to your right to be parent to your child, said that you cannot, at least where the waiver is sought by some rapacious commercial enterprise. And face it, all of the best fun (and greatest risk) is offered by such enterprises: amusement parks, scuba diving schools, zipline operators, skydiving entities…

The Kentucky Supreme Court blithely assumes that commercial defendants can simply buy insurance without pricing their services out of the marketplace or taming the adventures they offer.

E.M. v. House of Boom Ky., LLC, 575 S.W.3d 656 (Supreme Ct. Kentucky, 2019). House of Boom is a for-profit trampoline park, a collection of trampoline and acrobatic stunt attractions. Kathy Miller purchased tickets for her 11-year-old daughter, E.M., to go play at House of Boom.

Before purchasing a ticket, House of Boom required the purchaser to check a box indicating that the purchaser had read the waiver of liability, which waives claims arising from “negligent acts and/or omissions committed by HOUSE OF BOOM or any EQUIPMENT SUPPLIERS, whether the action arises out of any damage, loss, personal injury, or death to me or my spouse, minor child(ren)/ward(s), while participating in or as a result of participating in any of the ACTIVITIES in or about the premises.”

The waiver includes language that, if enforceable, would release all claims by (1) the individual who checked the box, (2) her spouse, (3) her minor child, or (4) her ward against House of Boom. Once Kathy Miller checked the box, E.M. used the trampolines at House of Boom, and was injured when another girl jumped off a three-foot ledge onto E.M’s ankle, breaking it.

Kathy sued House of Boom on behalf of her daughter in Federal district court. House of Boom, relying on questions over Kathy’s legal power to waive her daughter’s right to sue, concluded that House of Boom’s motion for summary judgment involved a novel issue of state law and used a procedure by which a federal court may certify such a question to the state supreme court for resolution.

Held: A pre-injury liability waiver signed by a parent on behalf of a minor child was unenforceable because under common law, absent special circumstances, a parent had no authority to enter into contracts on a child’s behalf.

Pre-injury release waivers are not automatically invalid in Kentucky, but they are generally disfavored and are strictly construed against the parties relying on them. The courts analyze these agreements for violations of public policy.

The liberty interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by law. Although parents have a fundamental liberty interest in the rearing of one’s child, this right is not absolute, and the State may step in as parens patraie to protect the child’s best interests of the child. The question of whether a parent may release a minor’s future tort claims implicates wider public policy concerns, the Court said, as well as the parens patriae duty to protect the best interests of children.

Section 405.020 of the Kentucky Revised Statutes provides that the father and mother shall have the joint custody, nurture, and education of their minor children. However, this grant of custody and parents’ right to raise their child, choose the child’s educational path, and make healthcare decisions on a child’s behalf has never abrogated the traditional common law view that parents have no authority to enter into contracts on behalf of their child when dealing with a child’s property rights, prior to being appointed guardian by a district court.

Even when acting as next friend in a lawsuit, a minor’s parent has no right to compromise or settle a minor’s claim without court approval or collect the proceeds of a minor’s claim.

As litigation restrictions upon parents have remained a vital piece of the Commonwealth’s civil practice and procedure, the Court refused to recognize any parental right to quash their child’s potential tort claim.

Children deserve as much protection from the improvident compromise of their rights before an injury occurs as the common law and statutory schemes afford them after the injury. The law generally treats pre-injury releases or indemnity provisions with greater suspicion than post-injury releases. Such an exculpatory clause that relieves a party from future liability, the Court held, may remove an important incentive to act with reasonable care.

Such clauses are also routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance. The party demanding adherence to an exculpatory clause simply evades the necessity of liability coverage and then shifts the full burden of risk of harm to the other party. Compromise of an existing claim, on the other hand, relates to negligence that has already taken place and is subject to measurable damages. Those after-the-fact releases involve actual negotiations concerning ascertained rights and liabilities.

Thus, if anything, the policies relating to restrictions on a parent’s right to compromise an existing claim apply with even greater force in the preinjury, exculpatory clause scenario. The public policy reasons for protecting a child’s civil claim pre-injury are no less present than they are post-injury.

Besides, the Court observed, a commercial entity has the ability to purchase insurance and spread the cost over its customer base. It also has the ability to train its employees and inspect the business for unsafe conditions. A child has no similar ability to protect himself or herself from the negligence of others within the confines of a commercial establishment. If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed.

– Tom Root

Case of the Day – Wednesday, November 12, 2025

Posted on November 12, 2025 by TLRoot tagged.

THE LIMITS OF CAUSATION

We liked our lunch at Jimmy John’s and didn’t discover that we were really victims – not patrons – until more than a year later.

We finish five days of considering independent contractors versus employees…

About a decade ago, we grabbed a Jimmy John’s meal on the way to a high school football game. While paying, I noted a stack of official-looking notices, informing me that my wife and I had been grievously injured a year and a half ago before when we ate a Jimmy John’s sub sandwich in Winston-Salem, North Carolina.

At the time, the sub tasted pretty good to some hungry travelers, and we seem to recall that we left the place feeling like we had gotten our money’s worth. Boy, were we ever wrong! It turns out that we may have gotten a sandwich that may have been advertised as having alfalfa sprouts but did not.

Oh, the humanity!

We don’t really remember what sandwich we ate, and if alfalfa sprouts were omitted (and if that had been important to us), we imagine we would have noticed. No matter, we are members of a class of consumers harmed by high-handed chicanery, alfalfa sprout deprivation that shocks the conscience! Admittedly, our damages would never make us lead plaintiffs in the post-Spokeo v. Robins world. Fortunately, we’re not here to discuss that decision (because we’re not entirely sure we understand it).

Likewise, there’s much about the alfalfa sprout class action lawsuit against Jimmy John’s that we don’t understand. According to the information we’ve gleaned from the settlement documents, we’re maybe going to get a coupon for a free pickle, or perhaps a bag of chips. The lead plaintiff gets $5,000 for her trouble, and her lawyers get around $400,000. Regardless of the amount of damages that may some day flow our way to heal our psyches, we were intrigued. It made us wonder about causation and damages. And, of course, about trees…

America's right to alfalfa sprouts – vindicated by the majesty of the law.

America’s right to alfalfa sprouts – vindicated by the majesty of the nation’s legal system.

Back in the early days of the last decade, Georgia Power was building a new transmission line through some swampland. The utility mapped out an area in which, due to environmental considerations, trees had to be cut by hand instead of a machine. The area was larger than the minimum required by law. While an employee of one of its contractors was cutting down trees, a branch fell from behind him and paralyzed him.

So what caused the injury? The fact that the worker didn’t watch the trajectory of what he was cutting? Just bad luck? His employer’s lousy safety program? Maybe a sproutless sandwich from Jimmy John’s? Or was it the fact – as Rayburn argued at trial – that Georgia Power insisted more trees be cut by hand than the law mandated? Or maybe it was the fault of the consumer, whose need for more electricity caused the building of the power line? Or maybe mainstream religion, for rejecting an Amish lifestyle that would eschew electricity?

You get the idea… when someone is badly hurt (and often when they’re not hurt at all), it’s good sport to look around for someone to blame, someone with deep pockets. But here, the Court refused to stretch the limits of causation unreasonably. While not conceding that tree cutting was inherently dangerous, the Court nevertheless stated, in essence, that the Plaintiff was a consenting adult and had freely agreed to assume the risks.

The lesson, kiddies, is this (and we don’t care what the slick lawyer’s ad on daytime TV says): Someone else doesn’t have to pay every time you get hurt. Here, have a pickle …

Rayburn v. Georgia Power Co., 284 Ga.App. 131, 643 S.E.2d 385 (Ct.App. Ga., 2007). Georgia Power set out to build a new transmission line. The coastal plain on which the power line was being built included wetlands and rivers. Because of the Army Corps of Engineers’ concerns with the destruction of wetlands, Georgia Power maintained a policy of clearing wetland buffers of trees by hand rather than with machines, which tended to tear up root mats and the ground. As well, the Georgia Erosion and Sedimentation Act required at least a 25-foot buffer to be cleared by hand on each side of a warm water stream, and at least a 50-foot buffer for trout streams, within which vegetation must be cleared by hand. In one case, a Georgia Power environmental supervisor specified a 50-foot buffer because the area was especially sensitive, but his assistant, an environmental analyst, marked in her notebook that they put 100-foot buffers on the stream. She set out flags showing the buffers. At some point, Georgia Power staff moved the wetland buffer to the edge of the right of way.

Caffrey Construction won a contract to clear timber, having taken into account that several areas in the project had to be hand-cleared. While working in a buffer zone, Rayburn was struck from behind by a limb from another tree. Rayburn sued Georgia Power, contending that the company’s negligence caused his injury. The trial court granted summary judgment for Georgia Power, holding that Rayburn’s injury was “the product of a normal risk faced by persons employed to cut down trees.” The court held that the decision to extend the buffer did not cause Rayburn’s injury, the cause of which was either his decision to cut down the tree in the circumstances presented or else an unforeseen occurrence for which no one was responsible. The court also declined to find that tree-cutting is an “inherently dangerous” occupation or that Georgia Power directed the time and manner of Caffrey’s work. Rayburn appealed.

Held: Georgia Power was not responsible for Rayburn’s injury. The Court noted that the employer of an independent contractor owes the contractor’s employees the duty not to imperil their lives through the employer’s own affirmative acts of negligence. However, the employer is under no duty to take affirmative steps to guard or protect the contractor’s employees against the consequences of the contractor’s negligence or to provide for their safety. This is especially true where a plaintiff has assumed the risk. An injured party has assumed the risk where he or she (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself or herself to those risks.

Here, Rayburn argued that Georgia Power owed him a legal duty not to expose him to unreasonable risks of harm by requiring hand-clearing in an area that could have been more safely cleared by machine and that it breached this duty. He submitted evidence that clearing timber by hand is more dangerous than clearing it by machine. While state regulations only required a 25-foot buffer to be hand-cleared on each side of a creek, Georgia Power marked a buffer line more than 100 feet from the stream. Rayburn complained that, despite the option of a safer means of tree cutting, Georgia Power “directed that the work be performed by inherently dangerous methods in extremely hazardous conditions contrary to accepted construction industry standards.” Therefore, he argued, Georgia Power’s decision to hand-clear this section of property regardless of the danger to Caffrey’s employees should make it liable for his injury.

The Court held that, notwithstanding all of this, Georgia Power could not have appreciated the dangers better than he did. The Court said that exposing someone to harm generates liability only when the person exposed does not appreciate the harm or is helpless to avoid it, which was not the case here. While Rayburn’s experts concluded that the working conditions were “abhorrent,” the Court said, none of the witnesses said that the conditions were out of the ordinary for that part of the state. If the contractor’s employees can ascertain the hazard known to the entity hiring the contractor, the contractor need not warn the employees of the hazard. Rayburn argued that, even if he knew the general risk involved in felling trees with a chainsaw, he did not assume the specific risk that the particular branch that hit him would do so.

Rayburn was hired to cut trees. He had experience cutting trees. He testified that he observed the conditions and would have spoken to his supervisor if he thought they were unsafe. He already knew that cutting trees with a chainsaw was hazardous, and therefore, Georgia Power had no duty to warn him that he could get hurt by doing the job, which presented hazards that he fully understood. He had actual knowledge of the danger associated with the activity and appreciated the risk involved.

Rayburn also argued that OCGA §51-2-5 made Georgia Power liable for Caffrey’s negligence because the work was “inherently dangerous,” and because it controlled and interfered with Caffrey’s method of performing the job. But the Court said the statute only makes an employer liable for the contractor’s negligence, and here, Rayburn has not established that Caffrey’s negligence led to his injury. Even if he had, Rayburn had not shown that Georgia Power retained the right to direct or control the time and manner of clearing the timber. Georgia Power’s on-site supervisor visited the property once or twice a week but did not direct the Caffrey employees on how or when to do their jobs. The Court observed that merely taking steps to see that the contractor carries out his agreement by supervision of the intermediate results obtained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable.

– Tom Root