Case of the Day – Wednesday, May 30, 2018

CATCH A FALLIING TREE

Regular readers of our news feature (which follows the Case of the Day every day), knows that trees fall on people all the time. Adults get hurt, children get hurt, sometimes they get killed.

Each one is a tragedy, but the tragedies often go unnoticed. The news media, however, cannot fail to observe what happened when one or two of their own are involved. A television anchor and a photojournalist for a broadcast news station in South Carolina died Monday after a tree fell and crushed their sport utility vehicle while they were out covering the severe weather generated by Subtropical Storm Alberto. The anchor, Mike McCormick, and the photojournalist, Aaron Smeltzer, worked for WYFF News in Greenville, S.C., and were about 30 miles north of there in North Carolina when the tree struck their SUV as they drove along Highway 176.

The story was big, even being reported on network news and in The New York Times. We were a little miffed – when a 17-year old girl on a hike dies when a tree falls on her, the Times doesn’t pick up the story. When a 5-year boy died playing on a hammock when the tree it was anchored to fall on him, NPR didn’t breathlessly lead with it in the next day’s “All Things Considered.” Even when something as bizarre as a tree falling on a wedding party occurs, killing the mother of the bride, you don’t hear David Muir mention it on the ABC evening news. But lose a TV anchor, and World War II doesn’t get as much ink or air time.

We don’t depreciate the loss of the two TV news people, but we do wish when ordinary folks are struck down by falling trees, the 4th Estate was as diligent in reporting it.

But here’s how the news ties into today’s case. What about that tree that crushed the reporters’ SUV? No doubt it was in the highway right-of-way (which is generally much wider than the paved road and shoulder). On the side street we live on, the R-O-W extends 30 feet from the centerline of the road, which brings to the edge of our tomato patch. As with an easement, we cannot do anything inside the right-of-way inconsistent with the city’s rights, but are we at all responsible for the trees standing there.

That was the question that woman who ran into a downed tree asked the Oregon Supreme Court. Back in the day, the landowner had no duty to people on the highway. But then along came the gasoline-powered car, and then another one, and another one, and pretty soon, society had changed. Had the duty owed the motorist by the property owner changed as well?

Taylor v. Olsen, 282 Ore. 343; 578 P.2d 779 (S.Ct. Ore, 1978). Bonnie Bell Taylor was driving on a Clackamas County road one dark and windy January evening when she ran into a tree which shortly before had splintered and fallen across the road. She sued Clackamas County, the owner of the right-of-way on which the tree was located, and Marion Olsen, the adjoining landowner who in possession of the right-of-way. The County was dismissed early on, but the case Bonnie had against Marion went to trial.

Bonnie argued Marion should have recognized the danger that the tree might fall onto the road. Marion maintained he had no duty of reasonable care with respect to Bonnie Bell where the fallen tree was concerned. The trial court directed a verdict for Mr. Olsen. Bonnie appealed.

Held: Marion had not violated any duty to Bonnie Bell.

Generally, the Oregon Supreme Court said, a possessor’s duty of reasonable care toward the traveling public will arise from actual knowledge of the dangerous condition of the tree. The more difficult question is whether the possessor will be held liable if he or she should have known of the danger, and specifically, under what conditions he or she has a duty to inspect his trees to discover a latent danger.

In assessing conditions under which the laws of other states have denied such a duty, the Oregon justices observed, those courts have based their conclusion on the impracticality or economic cost of obligatory inspection in relation to the probability of harm from falling trees or limbs. Half a century ago, the Supreme Court of Minnesota rejected such an affirmative duty in these terms:

Many of our public highways pass through timbered country, and upon the prairies owners have been encouraged to plant trees. It will add a very heavy burden on the servient fee owner if he must exercise the supervision and care for the dominant easement in this respect. If such a duty is laid upon him he becomes liable, in case of a failure, to respond in damages that may sweep away the value of his whole farm by some unfortunate accident like the present. Severe wind storms are not rare in this state, and a jury influenced by sympathy for the injured party are [sic] so prone to find the accident the result of negligence upon the slightest pretext.

In the 1930s, the view began to shift due to increasing automotive traffic and urbanization, with courts beginning to find liability when the latent decay of the falling tree was known or by the exercise of ordinary care could have been known by the landowner, where the tree stood in urban or suburban areas. However, nothing was said about trees along a rural road, and as late as the 1965 Restatement of Torts 2d, the duty to “exercise reasonable care” was assigned to the possessor in an “urban area” but rendered “no opinion” to “rural” areas.

The Court held that the question of a landowner’s or possessor’s attention to the condition of his roadside trees under a general standard of “reasonable care to prevent an unreasonable risk of harm” should be decided as a question of fact upon the circumstances of the individual case. The extent of his or her responsibility either to inspect the trees or only to act on actual knowledge of potential danger cannot be defined simply by categorizing land as “urban” or “rural.” “Surely,” the Court said, “it is not a matter of zoning or of city boundaries but of actual conditions. No doubt a factfinder will expect more attentiveness of the owner of an ornamental tree on a busy than of the United States Forest Service… but the great variety of intermediate patterns of land use, road use, traffic density, and preservation of natural stands of trees in urban and suburban settings prevents a simple ‘urban-rural’ classification.”

Even in a rural setting, the Court observed, it can make a difference whether the defendant or others for whom he is responsible are engaged in activities that involve the trees at the location in question or that alter the natural conditions at this location. When the owners of large tracts of rural land simply hold the land as landowners without engaging in such activities, the “practical difficulty of continuously examining each tree in the untold number of acres of forests” or in “sprawling tracts of woodland adjacent to or through which a road has been built can be so potentially onerous as to make property ownership an untenable burden. This would be particularly true for an absentee landowner.”

In this case, the road in question was a two-lane blacktop highway serving a number of communities in Clackamas County used by an average of 790 vehicles a day. A fallen tree thus might encounter a vehicle within an average of about two minutes, depending on the time of day. Marion purchased the land adjoining the road in 1973 for logging purposes, and during the five or six weeks before the accident he had logged about half the timber on his land. This included the trees next to the tree that eventually fell onto the road. Under these circumstances, the Court said, it would for the jury to decide whether Marion had taken reasonable care to inform himself of the condition of this tree, provided the plaintiff first provided evidence that an inspection would have disclosed its hazardous condition. Here, the evidence showed the tree broke and fell onto the road, and that the center of the tree at the point of the break was decayed. However, the decay did not extend through the bark. Only by chopping or boring into the trunk of the tree, the Court said, would there have been a substantial chance of discovering the decay.

Marion did not observe signs of rot, although he did not drill or chop into the tree. He did notice that the tree swayed in the wind. There was no evidence to suggest that chopping or drilling into the trunk would have been a normal or expected way to examine a standing tree in the absence of external indications that it might not be structurally sound.

The imposition of a duty to chop into a tree seeking hidden rot, the Court said, in the setting of this case requires more than the general observation that the tree sways in the wind. It requires some evidence either that the defendant should have been on notice of possible decay in this tree, or that cutting through the bark to the trunk is a common and ordinary method of examining trees generally. In the absence of such evidence, it was not error to direct a verdict for Marion.

– Thomas L. Root

TNLBGray

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.