Case of the Day – Friday, September 28, 2018

TREE HUGS CAR, THEN COURT HUGS TREE

What does the Amazon rainforest have to do with a ’77 Mercedes Benz?

When Vic’s beautiful 1977 Benz was crushed by Al’s tree (while Vic was driving his convertible down the road), Vic knew for a fact that someone had to pay for the damage, and it wasn’t going to be him. Al should have known that the tree was going to fall down, Vic fumed in his lawsuit. That argument lasted until the neighbor, who had extricated Vic from the recently-downsized roadster, provided pictures showing the tree had decayed from the inside, and a reasonable inspection would not have caught the danger.

Never mind, Vic argued, Al should be responsible for what his trees might do regardless of whether he was negligent or not. The concept, strict liability – sometimes called liability without fault – has some utility. If you keep a couple of pet tigers in the backyard and a great white shark in the fishpond, the courts aren’t going to waste a lot wondering if you were negligent when the jungle cats maul the neighbor boy or the great white eats the president of the garden club when she leans over the water to admire the lilies. You do something that inherently dangerous – keeping wild animals is not just a great example, but is the genesis of the notion of strict liability – was you’re going to be liable for whatever happens.

But for keeping trees? We suspect the judge was an environmentalist on the weekend, because he mused that if landowners were strictly liable for their trees falling onto the highway, then the landowners would start cutting down trees willy-nilly, and the beautiful Virgin Islands would be denuded posthaste. The Court opined that “the community, both local and global, also has a compelling interest in the protection and preservation of the environment. The same concern and sensitivity which we are just beginning to bring to the massive problem of the destruction of the Amazon rain forest, for example, should also apply to the relatively minute and particular circumstances of this case. No reasonable gain would be derived from adopting a rule of strict liability here, particularly when weighed against the potential ecological and aesthetic implications of such a decision.”

So trees would fall like dominos, and the earth would fry like an egg. So take that, Mercedes 450 SL. You may be fine, but the Amazon is finer.

Marrero v. Gerard, 24 V.I. 275 (Territorial Ct. Virgin Islands, 1989). Victor Marrero was driving his 1977 Mercedes Benz along the East End Road in Estate St. Peters when a tree fell on his car. Before its collapse, the tree stood on Plot 5 St. Peters, owned by Alphonso Gerard.

Norman Nielsen, one of Al’s neighbors and a co-worker with Vic, quickly arrived at the scene. The base of the tree was inside Al’s fence, but the remainder was on the road. Norm described the tree as “dry” where it broke off, “kind of rotten but green on top.” The evidence, which includes Vic’s pictures of the tree (though none showing the top of the tree where there was foliage) failed to show that an external visual inspection of the tree before the fall would have disclosed that it was rotten at its base and in danger of toppling.

Held: The court ruled, therefore, that Vic had not showed Al was negligent, because there was no evidence Al had reason to know that the tree was unstable or would fall. But Vic argued he didn’t have to show negligence, because Al should be strictly liable for the tree, that is, liable whether he was negligent or not. Vic based his argument on Restatement of Torts (Second) § 363(2), which holds that “a possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.” The explanation accompanying § 363 provides that “it requires no more than reasonable care on the part of the possessor of the land to prevent an unreasonable risk of harm to those in the highway, arising from the condition of the trees. In an urban area, where traffic is relatively frequent, land is less heavily wooded, and acreage is small, reasonable care for the protection of travelers on the highway may require the possessor to inspect all trees which may be in such dangerous condition as to endanger travelers. It will at least require him to take reasonable steps to prevent harm when he is in fact aware of the dangerous condition of the tree.”

The Court was unsure whether Al’s land was urban or rural, but it said that was irrelevant. Even if it had been urban, the Court said, the weakened condition of the tree was not apparent upon a visual inspection, “so that it matters not whether the area was urban or rural. Perhaps a core sampling of the tree would have disclosed the problem, but such an effort, particularly when weighed against the likely risk, is far too onerous a burden to place upon a landowner.”

Under the circumstances of this case, the Restatement simply does not impose strict liability, that is, liability without fault. While Restatement § 363(2) may apply a more specific standard of care to an urban landowner, the Court said, that standard is still “within a negligence realm.” Vic suggested the Court should “fashion a rule of strict liability” and thereby to pronounce a previously unexpressed public policy. The Court declined, holding that “Restatement § 363 is entirely consistent with sound public policy. “A landowner should have the duty to inspect for, discover and remedy patently hazardous natural conditions on his or her property which may cause harm to others outside the land,” the Court said. “But in this instance, the rotted condition of the tree was internal, not external, and therefore not discoverable upon reasonable inspection. To impose a rule of strict liability would be to declare, in effect, that any tree which is large enough to fall over the boundary of one’s land will subject its owner to liability in the event that a hidden weakness causes it to topple and cause damages off the land. Such a ruling, if widely disseminated, most likely would encourage prudent landowners to cut down large numbers of trees, thereby accelerating the already lamentable deforestation of the territory.”

No reasonable gain would be derived from adopting a rule of strict liability here, the Court held, particularly when weighed against the potential ecological and aesthetic implications of such a decision. It therefore dismissed Vic’s lawsuit.

– Tom Root

TNLBGray

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