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Case of the Day – Wednesday, October 29, 2025

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SWEET BAMBOO

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FPL appealed.

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

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

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

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

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

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

– Tom Root

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Case of the Day – Tuesday, October 7, 2025

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TRADITION

Sometimes, state law leaves a landowner suffering from invading roots and branches from a neighbor’s tree with no remedy but a chainsaw. As we all know, the Massachusetts Rule – alive and well in a number of states – lets a property owner trim offending branches and roots up to the property line, but that’s it: no lawsuits, no damage awards, no injunctions, and no meddling lawyers.

It’s the traditional approach.

Other states follow variants of the Hawaii Rule and let a property owner sue when a neighboring tree becomes a nuisance, causing “sensible harm,” a weird expression apparently meaning something more than falling leaves and twigs.

Then there’s the approach adopted by a Florida court of appeals of few words.  In the Sunshine State, a ficus tree near a landowner’s property boundary line was wreaking havoc on the neighbor’s house. The ficus is a very old tree, maybe 60 million years old (and possibly as old as 80 million years). It features aerial roots and is pollinated by a single species of wasp known as a fig wasp.

The owner of the tree was General Engineering Enterprises, Inc., obviously a big, faceless corporation with oodles of money. So Mike sued, asking for money damages. Why not? Everyone knows big mega-corporations are nothing but ATM machines, and you activate the cash-dispensing feature by walking through the courthouse door.

The Court was unsympathetic. Mike, you have a saw? Use it, man. Concerned that to permit Mike to get free money because branches from the ficus were overhanging his property might work in derogation of the time-honored principle of self-help, the Court of Appeals followed the Massachusetts Rule, despite the fact that the opinion candidly admitted that most other courts seemed to be headed toward the Hawaii Rule.

Ah, tradition!

Richmond v. General Engineering Enterprises, Inc., 454 So. 2d 16 (Ct.App. Fla. 1984). Mike Richmond sued General Engineering Enterprises, Inc., for money damages based on the company’s “negligence” in permitting branches of a ficus tree growing on its property to extend over and onto Mike’s home lot. The trial court wasted no time in dismissing Mike’s complaint.

Mike, obviously no reader of this blog, appealed.

Held: The Massachusetts Rule prevailed.

While there is substantial authority to the contrary, the Court said, “which may indeed represent the majority rule… we agree with those decisions which hold that in view of the undoubted right of the landowner himself to cut off intruding roots or branches at the property line, no such action may be maintained.”

The Court said that letting Mike proceed with his lawsuit to redress a claimed wrong “which might otherwise be obviated by the time-honored remedy of self-help would represent a wasteful and needless use of the judicial system.”

– Tom Root

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Case of the Day – Tuesday, January 14, 2025

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MISSION CREEP

It pretty much stands to reason that landowners whose trees and shrubs overgrow signs along the road, thus endangering motorists, might have a duty to trim their trees.

That’s the law in Florida. But what happens when the vegetation merely creeps up over an extended period of time? That happened on a country road in Dade County, where pine tree roots over 50-70 years submarined a roadway and turned the pavement into corduroy. Of course, it did not help that, at some point, the County widened the road, so that trees that were once well away from the road ended up uncomfortably close to the shoulder.

I once had a dapper contracts law professor – an adjunct with an alternative life as a litigation partner in a downtown law firm – who explained to us well-scrubbed first-year students that the law was a seamless web. We would never, he explained, have a case that was exactly like a case that had already been decided. Instead, our fact patterns and legal issues would fall somewhere in between cases and legal principles that had been settled by courts and lawyers who had gone before. Our job as attorneys, he said, was to convince the judge that our clients’ cases fell closest to the legal principle that best served our client’s interest.

That’s what the lawyer for injured passenger Mary Sharon Sullivan tried to do when he sought to convince a Florida appellate court that if a landowner can be dinged because its trees overgrow a stop sign, it certainly ought to be liable when roots from the landowner’s trees grow beneath a public street, breaking up the pavement.

Silver Palm Properties, Inc. v. Sullivan, 541 So.2d 624 (Ct.App. Florida, 1988). Bob Stevens was driving with a passenger, Mary Sullivan, on a two-lane county paved road in an agricultural section of Dade County. Bob’s car hit a series of bumps submerged in rainwater, and he lost control, swerved to the left and crashed into a tree several hundred feet away. Both Bob and Mary were injured.

Mary sued Silver Palm, the owner of the property next to the accident site, complaining that the company had a duty to maintain the trees on its property so that “subterranean growth” would not cause dangerous bumps, cracks, and protrusions in the road. She argued Silver Palm was negligent in allowing the trees to grow in such a manner as to damage the road, and in failing to inspect, discover, or repair the area. She said Silver Palm knew or should have known of the condition of the road “and therefore had a duty to take action reasonably calculated to correct the dangerous conditions created by its actions or inactions.”

Since 1974, Silver Palm has owned the avocado grove adjacent to the road where the accident occurred. About 50 to 70 years earlier, a prior owner planted Australian pine trees alongside the grove as windbreaks to reduce wind damage to the avocados. Silver Palm had never trimmed or pruned the trees. The trees were not originally located right next to the road, but when the county widened the highway in 1974, they ended up much closer than they had been before.

Mary’s expert witness, a mechanical engineer, said that about three and one-half to four feet of pavement had been uprooted and broken up to a height of five or six inches because of the pine tree roots. Another expert witness corroborated the engineer’s testimony. The expert explained that four methods were generally employed to prevent the growth and spread of tree roots. Two of the methods would kill the tree outright. In a third method – topping – limbs are cut away to reduce the height of the pine tree from about 30 feet to six feet. In a fourth method, root trenching, a trench is dug parallel to the roadway, severing the roots.

The horticulturist admitted that locally, he never seen had any owner other than Dade County perform root trenching, and he had never known of any company, individual, or landowner who had done root work on pine trees within 15 feet of a roadway. No one testified as to when in the past the topping method would have had to have been performed in order to retard the root growth enough to prevent the pavement from buckling and cracking.

The horticulturist also testified that when the County widened the road in 1974, its workers merely scraped over the tops of the existing roots instead of root trenching, which would have been the proper means of controlling the root problem. Had the county root-trenched in 1974, he testified, the trenching would have retarded root growth for about ten years, well beyond the date of the accident.

Dade County admitted it had prior knowledge of the condition of the road, and it admitted it had had the responsibility to maintain and repair it. It settled for $50,000 just after the jury had retired for deliberation.

Silver Palm did not, and the jury found it 22.5% negligent; Dade County, 15% negligent; and Bob (the driver) 62.5% negligent. The trial court entered a final judgment against Silver Palm and its insurer for $200,000.

Silver Palm appealed.

Held: Silver Palm was not liable to Mary.

Florida law holds that users of a public right-of-way have a right to expect that the roadway will not be unreasonably obstructed. Thus, a landowner may incur liability for damages caused by something which grows on private property but which obstructs the public right-of-way.

The Court distinguished the situation from other cases where obvious conditions created hazards, such as vegetation obscuring traffic signs. In those cases, “common sense required that a duty be imposed upon the landowner to remove landscaping which obstructed critical traffic signage. Vegetation that overhangs and blocks out a traffic control device constitutes an obvious condition and presents an imminent danger of uncontrolled traffic. The offending branch, moreover, need only be clipped away, a straightforward remedy.”

In this case, however, “the offending vegetation was anything but obvious. The root growth was slow and subterranean; the defect in the right-of-way became noticeable only after a considerable passage of time; and the remedy was known only to horticulturists and practiced only by a governmental entity.” Everyone agreed that Dade County, not Silver Palm, owned and maintained the roadway shoulder and surface in the area of the accident. Silver Palm had no right, the Court observed, to repair or alter the surface of the roadway.

To hold a landowner liable for failing to clip back vegetation that has overgrown a traffic control device is reasonable. To impose upon a landowner a duty to undertake root trenching or tree topping purely in anticipation that subterranean growth may alter the surface of a public right-of-way at some indeterminate time in the future is both burdensome and unreasonable.

– Tom Root

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Case of the Day – Tuesday, December 31, 2024

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SAUCE FOR THE GANDER

I confess that I have always been a little uneasy at the cases that balance the Massachusetts Rule against harm – even inevitable harm – to a neighbor’s tree. If the Massachusetts Rule says that a landowner suffering harm from a neighbor’s tree has no recourse but to trim branches and roots back to the property line, it seemed like holding that the tree owner had no recourse if the trimming harmed the tree was just a practical application of the commonsense notion that what is sauce for the goose is as well sauce for the gander.

The property line limitation of the Massachusetts Rule is quite necessary. You cannot have the neighbor wandering into your yard, hacking the tree branch back to the trunk. But at the same time, standards of careful tree maintenance (think ANSI Standard A300) would suggest that cutting a limb halfway back to the trunk is negligence. Inasmuch as the afflicted neighbor cannot trim the tree beyond the property line to acceptable standards without the tree owner’s permission, the neighbor would be sandbagged if she were liable for not trimming it in a way that did not damage it.

Likewise, if a neighbor can save her foundation only by severing so many roots on her property that the tree’s health and safety is jeopardized, why should she be liable for what happens to the tree? It’s not as though she could have sued to have the tree removed: that’s the whole point of the Massachusetts Rule.

And yet, cases like Brewer v. Dick Lavy Farms, LLC, Fliegman v. Rubin, and Booska v. Patel lead the march toward limiting the Massachusetts Rule with the rule that a landowner had a duty to act reasonably when exercising self-help rights. Such a limitation on the Massachusetts Rule almost guarantees that the Rule will be further watered down by permitting suits against tree owners for encroachment. And when that happens, the Massachusetts Rule will be indistinguishable from the Hawaii Rule.

My worry that what some may be progress is just needless change is why was so cheered by a 2018 year-end decision from Florida that so succinctly expressed my own feeling that the Massachusetts Rule requires that the prohibition on bringing suit apply as much to the goose as it does to the gander.

Balzer v. Maxwell, 263 So. 3d 189 (Ct.App. 1st Dist., 2018). A large pine tree stood on Barbara Balzer’s property near her boundary with a parcel owned by Cindy Ryan. The tree’s roots encroached onto Cindy’s property, damaging the sewer line that ran under their driveway. To fix the sewer line, Cindy hired Hoyt Maxwell to remove her driveway and replace the line. While removing the driveway, Hoyt cut some of the encroaching tree roots. Although he did not kill the tree, Hoyt undermined the tree’s structural integrity and increased the risk that it might someday fall on Barbara’s house. To be prudent, Barbara paid to have the tree removed.

Afterward, she sued Cindy to recover the costs of removing the tree. After a nonjury trial, the court awarded Barbara only a portion of her costs to remove the tree. Barbara appealed, arguing that the county court erred by not awarding all of her costs. Cindy and Hoyt cross-appealed, arguing that the county court erred in finding them liable for damaging the tree because Cindy had the right to cut the encroaching tree roots. The circuit court reversed, reasoning that because Barbara could not be compelled to pay for Cindy’s damaged sewer line, she likewise had no cause of action against Cindy and Hoyt if the tree was damaged when Cindy exercised her privilege to cut the roots encroaching onto her property.

Barbara sought review of the circuit court appellate decision.

Held: Because the circuit court’s decision did not violate any clearly established principle of law, its decision holding that Cindy and Hoyt were not liable was upheld.

The holding in this decision, known as a second-tier certiorari proceeding, was limited to deciding whether the lower court’s decision departed from a “clearly established principle of law” resulting in a miscarriage of justice. If there is no controlling precedent, certiorari relief cannot be granted because without such precedent, the reviewing court “cannot conclude that a circuit court violated a clearly established principle of law.”

Under Florida law, the Court observed, it is well-established that an owner of a healthy tree is not liable to an adjoining property owner for damage caused by encroaching tree branches or roots, but the adjoining property owner “is privileged to trim back, at his own expense, any encroaching tree roots or branches… which has grown onto his property.”

The issue in this case, however, was slightly different, whether an adjoining property owner is liable to the tree owner when the self-help remedy damages the tree. The Court held that while there are conflicting decisions on the issue in other states, no Florida court has weighed in on the issue. For that reason, the Court said, “it follows that the circuit court did not violate clearly established law in ruling the way that it did.”

Barbara argued that McCain v. Florida Power Corp. established that negligence principles extended to suits against landowners in circumstances like this case. The Court disagreed because Barbara did not allege and the evidence did not show that Cindy damaged anything other than the tree whose encroaching roots Cindy “undisputedly had a right to cut.” The Court concluded that a “rule imposing liability for causing any damage to the tree in these circumstances would effectively eviscerate that right.”

– Tom Root

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Case of the Day – Tuesday, May 21, 2024

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SHORT AND SWEET

There have been more than a few recurring themes in our posts over the past decade-plus. Some of the most repeated are (1) hire a lawyer when you should have one, such as anytime you feel the need to sue someone; (2) courts follow prior decisions – called stare decisis – in order to bring certainty to the law; and (3) the Massachusetts Rule has traditionally been the law of the land, and while that has been changing, it is still the “go to” rule in most places.

Alas, Virginia Scott is not one of our regular readers. Had she been back in 2010 (and yes, we were around then, when people were still surfing the Web with their Packard Bell 286s sporting 56K modems), she would have consulted a lawyer about the mess that trees belonging to her neighbor, Julie, were making in her yard. She would have told the lawyer that she wanted damages for the dropped leaves and twigs, and she wanted to be compensated for what she paid tree trimmers to cut the offending branches and roots back to her property line.

The lawyer would have said, “Nothing doing,” or words to that effect, which would have saved Virginia the cost and aggravation of trying a do-it-yourself lawsuit against Julie. As well as having her hat handed to her by the trial court and the court of appeals.

“But,” Virginia wailed, “the law is stupid. It should be changed.” Notably, that argument has worked some places – Virginia, Hawaii, North Dakota – but Virginia had no idea how to press for modification of the rule, and the Court was unimpressed.

At least the Court of Appeals kept it short and sweet. As we will be…

Scott v. McCarty, 41 So.3d 989 (Fla.App. 4 Dist. 2010). Virginia Scott owned property next to Julie McCarty’s place. Dr. Julie had some pretty lush trees – this being Florida, plants like to grow there – and eventually some of the branches were overhanging Virginia’s place, and the roots were intruding underground.

Virginia sued the Doc for the damages Julie’s trees caused her property and for the cost of trimming the branches back to the property line and digging up the intruding roots. Apparently, having spent so much on damage repair and tree trimming, Virginia decided to save money on a lawyer and represented herself.

The trial court dismissed her complaint forthwith, citing the Florida common law rule that “a possessor of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land. The adjoining property owner to such a nuisance, however, is privileged to trim back, at the adjoining owner’s own expense, any encroaching tree roots or branches and other vegetation which has grown onto his property.”

This rule not seeming right to Virginia, she appealed.

Held: Virginia’s case was properly dismissed. The Court of Appeals said that the reason for Florida’s common-law rule “was that it was wiser to leave the individual to protect himself than to subject the other to the annoyance of actions at law which would likely be innumerable.”

On appeal, Virginia acknowledged that the common-law rule, first adopted in the 1987 Florida appellate case Gallo v. Heller, was the prevailing law, but she asked the Court to “take a different course.” The Court refused to do so, saying that “the Gallo view is the predominant view in the country… [and] departing from the precedent would invite further litigation between neighbors on this issue, which as a public policy matter should be avoided.”

– Thomas L. Root

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