August 13, 2009
By: David K. Jaffe
Tree Wardens, Tree Pruning & Highway Defects
Trees and tree limbs have generated many falling object cases. Trees and their limbs usually fall because they are decayed and rotting or because they are blown about in a storm. Although the latter situation may allow the assertion of an "Act of God" defense, the former situation is more common and has generated by far more litigation. A typical case in one in which a dead tree limb falls on the plaintiff's car. In a Nebraska case, the plaintiff argued that a statute requiring property owners to remove dead trees from their property imposed strict liability on the defendant. However, the court held that a violation of the statute was, at most, merely evidence of negligence. The court concluded that a trial verdict in the plaintiff's favor required reversal with the case being remanded because the defendant did not have constructive knowledge of the tree's defective condition prior to the accident and also because the plaintiff had not proven that the defendant otherwise had been negligent.
In Connecticut, plaintiffs injured by falling tree limbs often bring cases under the state or municipal highway defect statutes, Conn. Gen. Stat. §§ 13a-144 and 13a-149. Whether a plaintiff's claim comes within the purview of §§ 13a-144 and 13a-149 is a question of law. A defect in a highway that would give rise to liability under either §§ 13a-144 and 13a-149 has been generally defined as "any object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result." Hewison v. New Haven, 34 Conn. 136, 142 (1867),
The Connecticut Supreme Court has answered the question of whether a falling tree branch constitutes a defect that comes within the purview of § 13a-144 in the negative. Several seminal highway defect cases are illustrative of the analysis involve.
In 1867, the Court in Hewison recognized that the defect need not be part of the roadbed itself. It gave, among other examples, tree limbs overhanging the roadway near the ground which necessarily obstructed the use of the road. On the other hand, Hewison pointed out that those objects which have no necessary connection with the roadbed or public travel, which expose a person to danger, not as a traveler, but independent of the highway, do not ordinarily render the road defective. Hewison listed trees, walls of buildings standing beside the road, and objects suspended over the highway which are so high as to be entirely out of the way of travelers, as examples of the latter. Hewison further pointed out that a person could be injured by them, but the use of the highway, as such, does not necessarily bring about the injury. Such objects may be a nuisance that the governmental unit may have an obligation to abate, but they are not defects in the highway. Hewison mentions a tree at the side of the road with branches protruding across the road low enough to interfere with travel or an object that would frighten even gentle horses.
In the 1911 Dyer case, the plaintiff was injured by a limb that had broken off a tree extending over the sidewalk on which he had been walking. Although the tree in Dyer had existed in its dangerous condition for more than a year, and constituted a nuisance upon the highway, the overhanging limb did not constitute a defect in the highway because it did not obstruct travel thereon. In Dyer the Court reasoned that if there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair.
The Connecticut Supreme Court explored this distinction more recently in Comba v. Ridgefield, 177 Conn. 268 (1979). One of the plaintiffs in Comba was injured when a large tree limb extending over the traveled portion of the highway broke off and fell onto the vehicle in which she was riding. The trial court rendered judgment in favor of the defendants, the town of Ridgefield and the Commissioner of Transportation, on grounds of sovereign immunity. The Supreme Court affirmed, stating: "The condition alleged ... did not obstruct, hinder or operate as a menace to travel. It was a condition that could cause injury, but that injury could result even to one who was not a traveler on the highway. A person could be injured by the limb; but the use of the highway, as such, would not necessarily have led to the injury." Id., 271.
Many subsequent have cited Comba's reasoning as authority in falling tree cases brought under the highway defect statute. In Toomey v. Burns, the decedent driver was transporting the passenger and decedent passenger when a tree limb fell on the automobile, injuring the passenger and killing the decedent driver and the decedent passenger. The plaintiffs commenced an action against the Transportation Commissioner under the state highway defect statute, § 13a-144. The court noted that the State is immune from suit unless it has legislatively consented to be sued, and that the State Highway Defect statute is a legislative exception to the common law rule of sovereign immunity and was to be strictly construed in favor of the State. Citing to Comba, the court held that tree limbs overhanging a public highway did not fit within the definition of a highway defect.
Improper pruning of trees by tree wardens and the commissioner of transportation, pursuant to statutes and ordinances, is another avenue that plaintiffs injured by falling tree limbs often seek to pursue. For example, Conn. Gen. Stat. § 13a-140, which provides for removal of trees along state highways, state in relevant part that "(a) The commissioner may cut, remove or prune any tree, shrub or other vegetation situated wholly or partially within the limits of any state highway so far as is reasonably necessary for safe and convenient travel thereon." Id. The court in Toomey v. Burns found that § 13a-140 did not impose a duty on the transportation commissioner to prune trees near the highway, because it used the term "may," rather than the term "shall," and the term "may" was discretionary.
Conn. Gen. Stat. §§ 23-59 and 23-65(b) have been interpreted by the Connecticut Supreme Court as vesting exclusive control in a town tree warden over trees located in whole or in part in public roadways. The Court has held that owners of private adjoining land were not liable to anyone accidentally injured by a tree falling in the roadway. In Kondrat v. Town of Brookfield, 97 Conn. App. 31 (2006), the plaintiffs sued defendants, a city and a landowner, seeking damages for personal injuries, wrongful death, and other claims associated with an accident caused by a tree that fell on a car. The tree was located on the landowner's property, approximately eight feet from the road. Ten years after cutting limbs off the tree, the landowner informed the city that the tree was beginning to split. A representative of the city inspected the tree but did not have it removed. The tree later fell on a vehicle traveling on the road. The Appellate Court held that the record did not support an assumption that the tree immediately threatened the life and limb of those who traveled on the road. The landowner's responsibility for denuding the tree was difficult to distinguish from what his liability would have been if the tree had been hit by lightening. Thus, the existing law absolved the landowner of liability.
Decaying trees often give little indication that they may be dangerous. Rot tends to proceed from the inside out, and the tree can easily become unstable long before there are any visible indications of trouble. Accordingly, the outcome in many cases revolves around whether the defendant should have discovered the tree's condition and the extent of the defendant's duty to inspect trees for rot and other signs of interior decay. Generally, depending upon where the tree is located, a landowner has no duty to inspect any tree on the property unless the landowner knows that the tree is decayed and may fall.
This was the issue presented in a New York case in which the plaintiff was struck by an overhanging limb that fell from a neighbor's maple tree during a windstorm. Prior to the accident, there had been no dead leaves or bare spots on the limb to indicate the presence of any disease. Based upon such evidence, the Court concluded that the neighbor had no actual or constructive knowledge of the defect and was thus not liable for the plaintiff's injuries. The court reasoned that there is no duty to consistently check all trees for evidence of invisible decay, and constructive notice, which requires a landowner to take reasonable steps to prevent injury, can be imputed only for readily observable signs of decay.
In certain situations involving falling tree limbs, however, a landowner may be held to a somewhat higher duty of inspection. For example, in urban areas where trees are less common, a possessor may be required to make a closer inspection of those relatively few trees on the property than might be appropriate in more densely wooded rural areas. The traditional common law rule of non-liability for natural conditions, although obviously a practical necessity years ago when land remained largely in an undeveloped state, is scarcely suited to modern cities. For this reason, landowners in urban areas can no longer escape all liability for serious damage to their neighbors merely by allowing nature to take its course. Thus, if a tree in an urban area might foreseeably fall into a city street, the landowner has a duty of reasonable care, including inspection, to make sure that the tree is safe.
Whatever the precise limits of a landowner's duty, falling tree cases, like almost all premises liability actions, ultimately involve proof of (1) the existence of a dangerous condition, and (2) the landowner's knowledge of that danger. These two issues ultimately depend upon the facts of each case, and the difference in potential outcome is illustrated by the following two factually similar cases. In the first, a Louisiana case, a dead tree limb fell from a live tree owned by the defendant homeowner's association and struck the plaintiff, a resident of the defendant's housing complex, as the plaintiff sat in a swing only two feet away from a pave walkway that ran through a common area of the defendant's complex and near a playground where children played and other people often walked. The plaintiff claimed that even a cursory, periodic inspection by the defendant's groundskeepers would have identified the visibly dead limb, which could have been removed at negligible cost. Accordingly, the court concluded that the limb constituted an unreasonably dangerous condition for which the defendant could be charged with knowledge.
In a second case, from Iowa, the court reached a completely opposite conclusion. There, a tree limb overhanging the plaintiff's property fell onto the plaintiff's foot. Just as in the Louisiana case, the defendants had no actual or constructive notice that the tree posed a hazard to the plaintiff or anyone else prior to the time of the plaintiff's injury. However, in the Iowa case, the plaintiff's own expert witness testified that although the tree was unsafe, there was nothing about the tree that would have visually alerted the defendants to have any concern over whether it was unsafe. Thus, the Iowa court concluded that the defendants were not liable because they did not know of the danger. Although neither defendant in either of these two cases had any actual or constructive knowledge of any dangerous condition relating to the injury-causing trees on their respective properties, had the defendant in the Louisiana case even casually looked at the tree in question, the defective limb would have been immediately obvious, whereas even if the Iowa defendant had undertaken such a visual inspection of its trees, the hazardous condition of the limb would likely still have remained undiscovered.
Apart from the so-called rural-urban distinction, some jurisdictions have also attempted to define the landowner's duty with respect to falling trees and limbs by reference to a preliminary determination of whether the injury-causing defect was of "natural" or "artificial" origin, with a duty to inspect imposed only where the defect was found to be "artificial."&