AS CORNY AS KANSAS IN AUGUST
We are often corny and it is August, but we’re not in Kansas any more, Toto, not that we ever were. But even in Ohio, we are familiar with the concept of “corn to the corners,” planting corn right up to the fence, even if it makes driving through a country intersection a crap shoot as to whether you’ll get T-boned by an oncoming driver who cannot see you for the cornstalks.
We have written about the visibility problem before, specifically whether a landowner is liable for obstruction of view caused by trees overhanging the right-of-way. It’s something we think about a lot in late August in Ohio, where the corn looks like it’s climbin’ clear up to the sky. Just like it is in Kansas.
Last week, the Kansas Supreme Court held off a concerted effort to change its rule that the rural landowner lacked any liability for sightline obstruction.
What made the ruling especially interesting was the Court’s comparison of two different versions of the American Law Institute Restatements on Torts, and the trend proposed in the latest Restatement version that makes any tort duty of care dependent solely on whether the landowner knew or should have known that the risk was obvious. Traditionally, some duties – such as a landowner’s duty of care to people passing by his rural property – was independent of a landowner’s knowledge or, what’s worse, what a reasonable owner’s knowledge should have been. The Restatement (Third) conflates duty and foreseeability into a single element, so that anything a landowner could reasonably foresee would establish a duty to avoid.
The Kansas Supreme Court, in a nod to tradition, refused to waltz down that path. Kansas precedent excuses a landowner from a duty to maintain sightlines on highways. And thus, the Court ruled, it still shall be.
Manley v. Hallbauer, Case No. 115,531 (Supreme Court of Kansas, Aug. 10, 2018). Darren Manley died after his truck collided with John Patton’s truck at the intersection of two gravel roads with no traffic signs. Officers investigating the accident found no evidence suggesting that either driver tried to avoid the collision. The officers testified trees located on land abutting the southeast corner made it impossible for northbound traffic to see approaching westbound traffic and for westbound traffic to see approaching northbound traffic.
About five years before the accident, Steven and Kathie Hallbauer purchased the property that included the offending trees. The growth remained unchanged from the time Steve and Kathie bought the property until the accident.
Darren’s estate sued Labette County, John Patton and the Hallbauers. Manley settled with Patton and Labette County, but the case proceeded against the Hallbauers. John testified no one hanot have a clear view of Anderson Road south of the intersection because of the tree row and underbrush and did not see Darren before entering the intersection. In the opinion of Darren’s engineering expert, “The lack of proper signage and site distance caused the accident which resulted in the death of Darren Manley.”
Steve and Kathie agreed that the view of the intersection was obstructed from around 50 to 60 feet away when traveling north or west, and they said the intersection would be safer with a stop sign.
The Hallbauers moved for summary judgment, arguing they could not be held liable under Kansas law for the failure to remove trees or other vegetation. The district court agreed, and the court of appeals affirmed, holding that the Hallbauers had no common-law duty to Darren to keep their trees trimmed for visibility purposes.
The appeals panel found that no prior Kansas case governed the outcome, and therefore looked to the Restatements of Torts for guidance. But it found the answer differed depending on whether it consulted the Restatement (Second) or the Restatement (Third) of Torts. Under the Restatement (Second), a rural landowner generally is not liable to someone who, while off the property, is injured by a natural condition of the land, like trees. But under the Restatement (Third), a landowner could be held liable if the landowner knew of the risk or the risk was obvious.
The Court of Appeals followed the older Restatement (Second) view, noting the Restatement (Second) had been applied by the Kansas Supreme Court many times and the Restatement (Third) differs from Kansas law in its analytical approach to negligence. Cases from other states as well found no duty under similar circumstances.
The Manley Estate appealed to the Kansas Supreme Court.
Held: Steve and Kathie owed no duty to passing motorists to trim their trees so as not to obstruct visibility on the highway.
Anyone claiming negligence must prove that (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the breach caused injury to the plaintiff, and (4) the injury resulted in real damages to the plaintiff. Here, the Kansas Supreme Court focused on the first element, duty. Where a duty exists, a person generally has the duty to act as a reasonably prudent person would act in similar circumstances.
The Supreme Court agreed that no Kansas precedent had found such a duty. Kansas law limits the person to whom a duty extends, however, to one who is a foreseeable plaintiff and only to cases where the probability of harm is foreseeable. What’s more, the Supreme Court will recognize a new duty only when the duty is consistent with public policy.
Under the traditional rule applying to the circumstances of this case, “the owner of land is under no affirmative duty to remedy conditions of purely natural origin upon his land.” Instead, the duty is on drivers to “observe obstructions to view and to exercise reasonable care for their own safety and protection.”
The Restatement (Second) of Torts states the traditional rule as being that the possessor of land is not liable for physical harm caused to others outside of the land by a natural condition of the land. ‘Natural condition of the land’ includes “the natural growth of trees, weeds, and may be imposed on an urban landowner “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 Restatement (Second) expresses no opinion whether this exception should apply in rural areas.
Two Kansas cases from the 1920s addressed obstructions to view, but established that public policy does not support imposing tort liability on landowners to correct natural conditions occurring entirely on their property that infringe on visibility of an intersection of public highways. While the Court of Appeals found the cases irrelevant to its analysis in this case, the Supreme Court did not. In fact, the Supreme Court said, the prior decisions recognized Kansas public policy that obstructions caused by woodland or crops ought not cause the abutting landowners to be liable.
Manley argued that the Supreme Court should depart from traditional Kansas law, and follow the Restatement (Third) of Torts. That rule would impose liability “for natural conditions on land that pose a risk of physical harm to persons or property not on the land… if the possessor knows of the risk or if the risk is obvious.”
The Restatement (Third) criticizes the use of foreseeability in a duty analysis as invading the function of the jury as fact-finder. The Supreme Court decided to “leave for another day the decision whether to adopt other aspects of the Restatement (Third), in particular whether we should abandon foreseeability as a consideration when analyzing a person’s duty to another.”
Its reasoning was straightforward: it would “adhere to precedent unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.”
Here, the Supreme Court was not persuaded to abandon the traditional rule that a landowner owes no duty in the circumstances of this particular case, and thus to weigh into the question of whether Kansas should shift how courts determine a common-law duty. Drivers havre a responsibility to drive with caution when conditions result in obstructed visibility. Plus, the traditional rule in premises liability is that landowners have no duty to protect against open and obvious dangers. Instead, individuals have a responsibility to protect themselves from such conditions. “These rules provide strong support for limiting liability under the circumstances of this case,” the Court ruled, “because the active participants in the accident can take steps to avoid a collision given that drivers should drive with caution to protect themselves and others at intersections, especially those with decreased visibility.”
The Court noted that “in our state, tall crops and natural conditions often obstruct a driver’s view at a rural intersection. And rural landowners often have many miles of property to maintain. Some of these considerations underlie the distinction between rural and urban landscapes recognized in both the Restatement (Second) and (Third) as influencing court decisions.” Additionally, Kansas statutes confirm that public policy imposes no duty on landowners. Our Legislature has conferred responsibility for care and maintenance of roads “‘for the safe passage of persons and property on various government entities… Kansas law recognizes landowners have some duty to maintain their property so that trees, plants, shrubs, or other obstructions create no traffic hazard by obstructing the view of passing drivers. But the responsibility for determining whether a traffic hazard exists falls to the secretary of transportation or a local authority. And the statute imposes a penalty only if a landowner fails to respond to one of those authorities’ notice.
“Had the Legislature wished to effect a different public policy than that articulated by this court and impose additional civil tort liability on the landowner,” the Court reasoned, “it has had more than 90 years in which to do so.”
Toi be sure, a different rule may be appropriate for urban areas. Or a different rule may be appropriate when natural growth on the property extends outside the bounds of the property. But the Court was “not faced with those situations today. Here, the accident occurred in a location that is undisputedly rural. There is no indication any part of the trees or overgrowth extend outside the property bounds.”
The Court thus held that a landowner whose property abuts a rural intersection owes no duty to passing drivers to trim or remove trees or other vegetation on the property.
– Tom Root