IF A TREE FALLS ON A CAR, AND THERE’S NOBODY TO SUE, DOES IT STILL MAKE A NOISE?
After the Virginia Supreme Court decided in Fancher v. Fagella that Linda Landowner has a duty to ensure her trees don’t become a nuisance to her neighbor Arnie Adjacency, you could be forgiven for reasoning that she also has a duty to be sure that her trees don’t fall on Mortimer and Mildred Motorist. After all, a duty to protect others from physical harm ought to rank higher on the hierarchy of social good than keeping Arnie’s retaining wall from collapsing.
One of the beauties of the law, however, is that it often does not make sense. The Virginia Supreme Court had an opportunity to underscore that unsurprising phenomenon last year, when it ruled that Fancher’s departure from the old Virginia Rule of Smith v. Holt didn’t extend to a landowner’s duty to the passing public. When a tree on the front yard dies, decays and falls in the road, let the driver beware …
Cline v. Dunlora South, LLC, 726 S.E.2d 14 (Sup.Ct. Virginia, 2012). Facts: Cline was driving on a public road when a tree fell and crushed the roof of his car. Cline suffered severe and permanent injuries, including fractures of his cervical spine.
The tree was located about 16 feet from the edge of the road, on land owned by Dunlora South. At the time of the mishap, the road was traveled by about 25,000 vehicles per day. The tree, approximately 25 inches wide was “dying, dead, and/or rotten” at the time it fell, and had been in this condition for a period of “many years and exhibited visible signs of decay, which were open, visible and/or obvious.” According to Cline, the tree’s condition was or should have been known by Dunlora, just as it should have been aware of the hazards presented by trees being next to the public highway. Cline sued, but the trial court held that Virginia law did not provide for recovery of personal injury damages caused by a private tree falling on a public highway. Cline appealed, and the case reached the Virginia Supreme Court.
Held: The Court held that, even after Fancher v. Fagella, a private landowner was not responsible for damages to a person using a public highway, when that damage was caused by a tree located on the landowner’s property. At common law – that is, law imposed and changed incrementally by decisions handed down judicial decision – a landowner owed no duty to those outside the land with respect to natural conditions existing on the land, regardless of the danger posed by such dangerous conditions. Although Virginia courts had never recognized that principles of ordinary negligence apply to natural conditions on land, in Smith v. Holt, an adjoining landowner was held to have a nuisance cause of action if injury was inflicted by the protrusion of roots from a noxious tree or plant on the property of such adjoining landowner. The Court observed that the duty it recognized in Smith v. Holt was “in accord with the broad common law maxim: “sic utere tuo ut alienum non laedas” – one must so use his own rights as not to infringe upon the rights of another … The principle of sic utere precludes use of land so as to injure the property of another.” It was this principle that gave birth to the “Virginia Rule,” a splitting of the difference between the Massachusetts Rule and the Hawaii Rule.
Fancher changed a lot, the Court admitted. It modified Smith’s “Virginia rule” by discarding the subjective requirement of “noxious” nature, and imposing a limited duty on owners of adjoining residential lots to protect against actual or imminent injury to property caused by intruding branches and roots. Fancher articulated a rule allowing relief where trees encroaching onto the land of another begin to constitute a nuisance, that is, when they encroach upon the property of another such that they cause actual harm or the imminent danger of actual harm. Fancher thus recognized that a trial court must determine whether circumstances are sufficient to impose a duty on the owner of a tree to protect a neighbor’s land from damage caused by its intruding branches and roots.
The Court held here that the Fancher rule imposing a duty on a tree owner to protect a neighbor’s land from damage caused by the tree, only “addresses a narrow category of actions arising from nuisance caused by the encroachment of vegetation onto adjoining improved lands.” The Fancher and Smith duties are dramatically different than imposing a duty on a landowner to monitor the natural decline of his or her trees adjacent to a roadway. Fancher does not impose a duty on a landowner to inspect and cut down sickly trees that have the possibility of falling on a public roadway and inflicting injury.
Instead, the duty owed by adjoining property owners is to not do anything to make the highway more dangerous than it would be in its natural state. In this case, no one suggested that Dunlora engaged in any affirmative act that made its property adjoining the highway different than it had been in its natural state. Cline’s complaint was that Dunlora failed to act, and Virginia common law tort principles do not hold that a landowner owes a duty to take affirmative acts to protect travelers on an adjoining public roadway from natural conditions on his or her land.