Case of the Day – Friday, January 23, 2026

Posted on January 23, 2026 by TLRoot tagged.

ILLEGAL SUBSTITUTION

It’s late January, and you’re fired up to watch New England play the Broncos (who the smart money says are done because they lost Bo Nix to a broken ankle)? I saw this happen in college football, late 2014. A top-ranked team wins big rivalry game,but the star QB is lost to a broken ankle. Third-stringer called up, learns a handful of plays, and leads the team to a national championship. Cinderella story.

Hey, Denver. It can happen.

And how about the 49ers’ last-second win over the Seahawks? Just kidding.

It’s a trick play! Interesting in football, less so in the courtroom.

There were only four games to watch this past weekend, but we need to start brushing up now on football’s finer points. Such as the ref having to touch the ball between plays. And illegal substitution.

Trials aren’t supposed to be conducted by trickeration. Parties have a full chance to engage in discovery — seeing the other party’s documents, taking depositions of witnesses under oath, that sort of thing — well before trial.

In today’s case, a woman was killed when a tree branch broke free in a storm and struck her. Her husband sued, naming the owner of the tree and the power company that had an easement where the tree stood, among others, as defendants. He claimed that the tree hadn’t been trimmed properly and that negligence had led to his wife’s death.

At trial, the defendant called a witness to authenticate the location of the tree relative to the road. The plaintiff threw the red flag because the witness hadn’t been listed on the defendant’s expert witness list. An illegal substitution, he complained. The trial court didn’t think so but offered to adjourn the trial so that the plaintiff could take the witness’s deposition. A solution neater than Pete Carroll’s hair, you say? One might think, but the plaintiff wasn’t interested.

During the witness’s testimony, it developed that he hadn’t done the survey himself but instead was only vouching for someone else’s survey. The defendant announced it would call the two men who had taken the survey, and the plaintiff cried foul again. The trial court noted that the location of the tree was critical, and let them testify anyway. The defendant won by a touchdown.

Was it a blown call? The plaintiff decried it as uglier than a Pittsburgh Steelers retro uniform. The Court of Appeals — sitting up in the review booth — typically gives substantial deference to trial procedure decisions made by the trial court. It held that letting the witnesses testify was well within the trial court’s discretion. It noted that Slater could have taken the adjournment offered, and inasmuch as he didn’t, he was hard-pressed to argue he was hurt by the trial court’s decision.

C’mon, Patriots! Go Broncos! And Seahawks and Rams! Keep us interested between the commercials.

Slater v. Charter Communications, Inc., 2007 Mich. App. LEXIS 2821, 2007 WL 4462396 (Mich.App., Dec. 20, 2007). The Slaters were driving on West Torch Lake Drive in Rapid City when they came upon tree branches that had fallen from a tree and were obstructing the roadway. The weather was rainy and windy. As the Slaters returned to their car after clearing the roadway, a large limb from the same tree broke off, fell onto a power line and then struck Mrs. Slater in the head. She died the following day from her injuries.

Her husband sued everyone, including bringing a negligence action against Consumers Power Company and a premises liability claim against defendant Charter Communications. Mr. Slater alleged that the tree was in Consumers’ easement and that Consumers breached its duty by failing to remove the dangerous limb from the tree. He also alleged that the tree was on Charter’s property and that Charter breached its duty to maintain the property in a safe condition by failing to remove the dangerous limb from the tree.

The identity of the expert witness became a shell game …

Consumers moved for the case to be thrown out, asserting that the facts showed that it wasn’t responsible for trimming the tree from which the limb fell. Slater admitted that he lacked any evidence that Consumers was responsible for the tree, and in light of this, the trial court granted Consumer’s motion. At trial, Charter announced that it would call John Korr, the survey department development manager for Gosling Czubak Engineering Sciences, Inc., to authenticate a tree location survey that had been submitted to the court about one year earlier. Charter argued that the tree was not on its property but rather within the road right-of-way. Slater moved to strike Korr as a witness because Korr was not listed on the expert witness list. After the trial court indicated that it would allow Korr to testify, the court offered an adjournment to allow plaintiff to obtain an independent survey and depose Korr, but he declined.

After interviewing Korr on the third day of trial, Slater informed the trial court that he had just learned that Korr neither took the measurements nor prepared the survey. He had just verified it . The trial court then allowed Charter to call Simmerson and Anderson, the individuals who had taken the measurements and actually written the survey, to testify. Following the trial, the jury found that the tree was located in the road right of way and, therefore, judgment was entered in favor of Charter. Slater appealed.

Held: Judgment for Charter was upheld. The Court of Appeals held that the trial court properly dismissed Consumers Power from the suit, because with Slater’s admission that he had no evidence that Consumers had trimmed the tree, there was no genuine issue of fact.

The Court also ruled that the trial court had not abused its discretion by allowing Korr, Simmerson, and Anderson to testify. The decision whether to allow the late endorsement of an expert witness is reviewed for an abuse of discretion. Generally, the rule is that justice is best served where an unlisted witness can be permitted to testify, as long as the opposing party’s interests are adequately protected. Here, the trial court acknowledged that Slater had not gotten to take Korr’s deposition but noted that whether the tree was located on the plaintiff’s property rather than in the road’s right-of-way was a critical factual dispute, and the existence of the survey had been known to Slater for about a year before the trial commenced. The court offered Slater an adjournment to obtain an independent survey and to depose Korr, which he declined.

That was enough, the Court of Appeals ruled. Consequently, it held that the trial court had not abused its discretion.

– Tom Root

Case of the Day – Thursday, January 15, 2026

Posted on January 15, 2026 by TLRoot tagged.

DANGER TREES AND PIXIE DUST

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Tom Root

Case of the Day – Wednesday, January 14, 2026

Posted on January 14, 2026 by TLRoot tagged.

SOMEONE’S GOTTA DO SOMETHING ABOUT ALL THESE ASH HOLES

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

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

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

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

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

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

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

So exactly whose problem is it?

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

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

The infestation on this ash is pretty obvious.

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

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

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

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

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

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

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

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

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

Wertz appealed.

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

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

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

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

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

– Tom Root

Case of the Day – Monday, January 12, 2026

Posted on January 12, 2026 by TLRoot tagged.

NOT EVERYTHING IS SOMEONE ELSE’S FAULT

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

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

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

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

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

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

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

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

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

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

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

Mrs. Terry appealed.

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

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

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

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

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

– Tom Root

Case of the Day – Wednesday, December 31, 2025

Posted on December 31, 2025 by TLRoot tagged.

DOING NOTHING MAY BE A VERY GOOD OPTION

Yesterday, we considered whether my friend, Kirk Piper, was on a slippery slope in letting the sledding public have the run of Logan’s Hill. This peculiarly good winter coasting venue happened to come with the property on which he lived. Being a guy who is comfortable wearing both a belt and suspenders, Kirk had a deal with the City pursuant to which if he permitted recreational use of the hill next to his house, City liability insurance would cover such use of the hill. But, he wondered, what would happen if liability exceeded the insurance limits, or the City dropped coverage, or the Finance Director forgot to mail the premium, or some other calamity led to his being in the defendant’s dock as a result of what happened to the sledders using the hill?

Between cups of mulled wine at Kirk’s Christmas party last week, I told him about the wonders of Ohio’s recreational use statute. Sledding seemed to me to be the type of recreational activity that should be covered by § 1533.181 of the Ohio Revised Code. Naturally, my interest was piqued, and unsurprisingly, I found that the question had already been asked and answered in court.

But, as I noted yesterday, there is an important limiting factor. Land used for recreational purposes often is undisturbed, full of groundhog holes, dead trees, unmarked bogs, crocodile dens, and the like. In fact, the land’s undisturbed nature is often what makes it attractive for recreational use to begin with. For that reason, the recreational use statute exempts guys like Kirk from liability for the condition of the land on which the public may take its recreation.

Hogan’s Hill, for example, has a water hazard, a creek that is easily reached by the faster sleds. Many kids have had to bail out just before sleds topple over the bank into the thin ice and cold water. Suppose Hogan’s Hill was an amusement park attraction, with the creek being a feature rather than a bug. In that case, you can be sure that liability for damaged sleds and injured kids resulting from crashing into the creek would attach to the park operator. But because it is a natural feature of Hogan’s Hill, users are the captains of their own ship.

But what if Kirk, in a well-intentioned effort to improve Hogan’s Hill for the public, decided to bulldoze a few moguls or reroute the creek through some concrete culverts? And halfway through the work on a winter’s day. he parks his bulldozer at the bottom of the hill to go inside for a cup of that mulled wine? And while he’s gone, little Johnny and Judy race down the hill on a toboggan and collide with the dozer’s blade?

Or say Kirk used the dozer to dig a 10-foot deep pit just before the creek to stop sleds before reaching the water, and Johnny and Judy run their toboggan into the hole?

In a case like that, the liability issue is murkier. When it comes to the hill, doing nothing to alter or repair its natural conditions – even if the alteration makes perfect sense – might not just be an option, but even perhaps a better option.

Combs v. Ohio Dep’t of Natural Resources (2016), 146 Ohio St. 3d 271. Richard Combs was celebrating his birthday at Indian Lake State Park, which is open to the public without an admission charge. He spent the night fishing and early the next morning walked to Pew Island, where the fishing is better. As Rich walked across the causeway to Pew Island, Jerry Leeth, an ODNR employee, was using a boom mower to cut weeds and brush along the lakeshore. One of the mower blades threw a rock that struck Rich in the eye and face, and caused serious injuries.

Rich sued ODNR in the Court of Claims, alleging that Jerry negligently operated the boom mower and caused his injury. The Court of Claims granted ODNR’s motion for summary judgment, holding that because Rich was a recreational user, ODNR had no duty to keep the park safe for his entry or use, and his negligence claim was thus barred as a matter of law.

The court of appeals reversed the decision, holding that although the recreational user statute abolished a property owner’s duty to keep its premises safe for use by recreational users, it provides immunity only for injuries caused by the defective condition of the premises. The appellate court held that because Rich claimed that he was hurt by an ODNR worker’s negligence and not by a defect in the premises, the recreational user statute did not apply.

Richard appealed to the Ohio Supreme Court.

Held: ODNR was not entitled to immunity under the recreational user statute ORC § 1533.181, because Rich’s injuries did not arise from a defective condition of the premises, but rather from negligent mowing by an ODNR employee, and, as such, ORC § 1533.181 did not apply.

The Court noted that ORC § 1533.181, the recreational user statute, provides that no landowner owes any duty to a recreational user to keep the premises safe for entry or use or extends any assurance in that regard. Under the statute, a landowner is not liable to a recreational user for injuries caused by the defective condition of a recreational premises.

At common law, a landowner owed a duty to those who entered the premises, depending on whether the people were invitees, licensees, or trespassers. A landowner owed an invitee – someone the landowner had invited onto the property – the duty to exercise ordinary care to render the premises reasonably safe. The landowner owed no duty, however, to a trespasser or licensee upon the land except to refrain from wanton, willful, or reckless misconduct which is likely to injure him.

The common law also recognizes that a landowner, being aware of the presence of a licensee, or even a trespasser, is required to use ordinary care to avoid injury to him arising from the active negligence of such owner or his servants. The duty to exercise such reasonable care arises after the landowner knows or should know that a licensee or trespasser is on the land.

The recreational user statute amends the common law rule. Instead of common law distinctions based on the status of the person on the land, the duty owed depends solely on whether the person using the property qualifies as a recreational user. The statute limits landowner liability for injuries to recreational users in three ways: (1) no landowner owes any duty to a recreational user to keep the premises safe for entry or use; (2) granting permission to enter the property is not an assurance that the premises are safe; and (3) a landowner is not liable for injuries caused by the act of a recreational user.

But the statute has its limits. The Court observed that the legislature could have excused a landowner from any duty whatsoever to any recreational user, “but tellingly, it did not do so.” Instead, the statute does not abrogate a landowner’s common law duty to exercise reasonable care to avoid negligently injuring those on the premises, and – in the absence of language clearly showing the intention to supersede the common law – the existing common law continues in full force.

Accordingly, the Court ruled, the recreational user statute does not limit a landowner’s liability for a negligently inflicted injury that does not arise from the condition of the premises. In this case, Rich’s injuries did not arise from a defective condition of the premises but rather from Jerry’s alleged negligent operation of the mower. ORC § 1533.181 simply does not apply in these circumstances.

– Tom Root

Case of the Day – Friday, December 26, 2025

Posted on December 26, 2025 by TLRoot tagged.

WRONGFUL TREES

For all of the Latin phrases, hidebound traditions, and libraries full of precedent, the law at its essence is nothing more than a codification of policies generally accepted by society. The law doesn’t always get it right – some laws aren’t carefully drafted, others do exactly what the legislature intended but pursue foolish or even repugnant policies – but by and large, the law tries to lay out rules for conduct based on policies generally accepted to be important.

Keeping an eye on the prize – the societal goals to be achieved – often helps courts from going overboard. It’s how the camel’s nose can be allowed into the tent without getting the whole camel in the process.

A good example of this is the “wrongful life” lawsuit. States all allow a “wrongful death” action, in which the survivors of someone killed, say, in a car accident or from medical malpractice sue for damages. This makes good sense. But in the last decade or so, some “wrongful life” suits have been brought, where – for example – a physician misdiagnoses and tells prospective parents that their fetus is healthy, but the doctor is wrong. The child is born with severe birth defects. The “wrongful life” suit claims that but for the physician’s negligence, the child would have been aborted.

Very few courts have permitted such a lawsuit for several very good public policy reasons. The first is that society does not recognize, as a matter of policy, that anyone is better off not having been born, no matter how severe the burdens of congenital disability. Second, the whole idea of tort law is to place the injured party in the same position as he or she would have been in had the negligence not occurred. But for the negligence, the injured party wouldn’t have been born. What can be done to put a living plaintiff in that position, or, for that matter, to compensate for having been born instead of never being?

And what would have made Ms. Lewis happy? Perhaps if the Krussels had only clearcut their property ...

Just what would have made Ms. Lewis happy? Perhaps if the Krussels had clearcut their property …

All right, that’s pretty heady stuff, but what does that have to do with tree law? Simply this: in today’s case, the plaintiff, Ms. Lewis, suffered from having a tree belonging to her neighbors Gary and Nancy Krussel fall on her house. Her suit simply claims: the tree fell on her house; the neighbors knew they had a tree; therefore, the tree was a nuisance; and the neighbors were negligent in failing to keep the tree from falling on the house. There was no evidence that the Krussels had any inkling this particular hemlock was going to fall. There was no evidence any reasonable person would have had such an inkling. In fact, there was no evidence that the tree was diseased or damaged. Reduced to its essence, Lewis’s claim was that the tree existed and the tree later fell, and those facts made it a nuisance. The tree was alive, the argument seems to say, and that fact wronged Ms. Lewis.

Fortunately, the Washington state courts made short work of this claim. Ms. Lewis was trying to advance a negligence claim as a nuisance claim, probably because she had no evidence of negligence. But, the courts ruled, public policy was not ready to declare a tree a nuisance merely because it was growing, nor was it prepared to hold that property owners were liable for what became of any naturally-growing, healthy trees on their land.

Without keeping one eye on public policy, the courts’ development of the law might go like this: First, landowners are responsible for damage caused by trees on their property that are diseased or damaged, and about which condition they are actually aware or reasonably ought to be aware. The next step would be for the courts to rule that owners must inspect their trees to avoid liability. Finally, landowners would be strictly liable for any damage caused by their trees, whether they were aware of a problem with the trees or not.

Largely, the law has stopped short of such a draconian rule, because the courts recognize that public policy favors the natural growth of trees, and eschews requiring property owners to devote substantial time and money to inspect trees, where there is no concomitant benefit to the public. By and large, courts have enough policy sense to let the camel’s nose into the tent while keeping the rest of the dromedary outside.

It is this kind of analysis that is illustrated in today’s case.

Lewis v. Krussel, 101 Wash.App. 178, 2 P.3d 486 (Ct.App. Wash. 2000). During a windstorm, two large healthy hemlock trees fell on Dawn Lewis’s house. She sued Gary and Nancy Krussel, who owned the property on which the trees had been growing.

Krussel acknowledged that windstorms had knocked down other trees on his property and other properties nearby in previous years. About a week after the windstorm at issue here, another windstorm knocked a tree onto his mother’s mobile home. But the trees that damaged the Lewis house were natural growth, and Krussel had no reason to believe that they were any more dangerous than any other trees on his property under normal conditions. After the damage to the Lewis house, Krussel cut down other hemlock trees located near his house upon the recommendation of the local utility district.

After Lewis sued for nuisance and negligence, Krussel moved for summary judgment. He supported the motion with evidence from a professional forester who inspected the stump of one of the fallen trees and found no evidence of rot. The forester concluded the tree that fell on the Lewis house was no more dangerous than any other tree standing on the Krussels’ property, and there was no way for the Krusselses to determine beforehand whether any one of their trees would fall over. The trial court dismissed the Lewises’ claim, and Lewis appealed.

Held: The appeals court upheld the dismissal of Lewis’s claim.

Sure Ms. Lewis’s house was crushed … but gravity did not turn the healthy tree that toppled onto her roof into a nuisance.

A homeowner is not obligated to remove healthy trees because they might topple in a storm. The Court of Appeals said that just because a negligence claim was disguised as a nuisance suit didn’t mean that the trial court had to consider it as such. Instead, in situations where the alleged nuisance is a result of what is claimed to be negligent conduct, the rules of negligence are applied.

The elements of a negligence cause of action, of course, are (1) the existence of a duty to the plaintiff, (2) a breach of the duty, and (3) injury to the plaintiff flowing from the breach of duty. An owner of property located in an urban or residential area who has actual or constructive knowledge of defects affecting his or her trees has a duty to take corrective action. However, the same is not the case when the tree is healthy. In that case, the owner does not have a duty to remove healthy trees merely because the wind might knock them down.

In this case, the Court agreed, there was no evidence that Krussel had any reason to believe that the hemlock trees posed a hazard, and a professional forester who had inspected the stump of the fallen tree had found that the tree was free of defects. The mere possibility of harm does not mean the probability of harm.

– Tom Root

Case of the Day – Wednesday, December 24, 2025

Posted on December 24, 2025 by TLRoot tagged.

We’re out until Friday, December 26th, watching early and inconsequential bowl games.

Our turkey, covered with bacon, is being cooked on the grill again this year. Tradition tastes so good…

No heavy lifting for today (unless perhaps a really big present, maybe a new chainsaw or something). We’re being overrun by our three grandsons (ages 7, 3 and a year old). Our two granddaughters are wisely staying in sunny and warm Minnesota. Meanwhile, we’re hunkered down awaiting the jolly old Elf. I’ll see you back on Frieday, December 26th.

For now, I have an arboriculture law present for you from me.

I really do, a little literary gem, a simple case from That State Up North (Michigan, for you non-Ohioans out there) in which the property owner sued a driver who careered off the road and ran into the landowner’s beloved oak tree. The tree was badly damaged, the plaintiff said, and would need special care for the remainder of its days.

The driver defended on jurisdictional grounds, arguing that Michigan’s “no-fault” insurance law meant that the court could not assess property damages against him for the mishap.

The Court denied the landowner’s case, but it did so in verse (with apologies owed to Joyce Kilmer):

We thought that we would never see
A suit to compensate a tree…
A suit whose claim in tort is prest
Upon a mangled tree’s behest;
A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court’s decree.

Doggerel? I don’t think so. Perhaps “poetic justice” instead. Whatever it might be, it makes for more interesting reading, and no doubt amused everyone except the plaintiff, who was left uncompensated for the damage to the oak tree.

May your trees remain healthy, happy, properly trimmed by a professional arborist, and clear of easements, rights-of-way, neighbors, and passers-by for this season and all of 2026.

Merry Christmas to all!

Fisher v. Lowe, 333 N.W.2d 67, 122 Mich.App. 418 (Ct.App. Mich., 1983).

The facts:

“A wayward Chevy struck a tree,
Whose owner sued defendants three.
He sued car’s owner, driver too,
And insurer for what was due
For his oak tree that now may bear
A lasting need for tender care.
The Oakland County Circuit Court,
John N. O’Brien, J., set forth
The judgment that defendants sought
And quickly an appeal was brought.”

Held:

“Court of Appeals, J.H. Gillis, J.,
Gave thought and then had this to say:
(1) There is no liability
Since No-Fault grants immunity;
2) No jurisdiction can be found
Where process service is unsound;
And thus the judgment, as it’s termed,
Is due to be, and is,
Affirmed.”

– Tom Root