IT’S A JUNGLE OUT THERE
The balmy weather this past weekend (25º with high wind and blowing snow) made me long for the warm days of August when I could bask in the pool at the local pool.
Maryann Dunlap does not share this fond memory of hot fun in the summertime.
No question Maryann enjoyed her time bobbing in the pool at the Ridley Park Swim Club. But as she crossed the parking lot to leave, a tree in the tangled thicket on an undeveloped lot next door fell on her, writing a quick finis to her pleasant day.
The case that ensued raised interesting questions of when a party needs an expert to establish whether a defendant had a duty to inspect trees, as well as the extent of the duty when the property on which the tree stands is – as the trial court put it – an undeveloped “jungle” but is next to property that is not.
There has long been a distinction made between the nature and extent of the duty to inspect trees on urban property (where the risk of harm from hazard trees is much greater) and rural property (where if the tree falls in the forest, it may not even make a noise if no one is around to hear it). Today’s case hones that duty a bit finer, relying on the same policy considerations – the risk from falling timber – but implicitly rejecting the rather coarse distinctions of urban versus rural.
Dunlap v. Ridley Park Swim Club, 133 A.3d 64 (Pa. Superior Ct., 2015): One hot summer day in 2009, Maryann Dunlap was swimming at Ridley Park’s pool. While she was walking through the parking lot to leave, a tree located on property owned by Harper Associates – about 25 feet from the property line – fell on her. No part of the tree overhung Ridley Park’s property. The tree was dead and decaying, and it had enough vines growing on it to warm Tarzan’s heart.
Harper Associates did not examine the tree or take any other action to ascertain if the tree posed a hazard to people either on its land or on Ridley Park’s property.
Dunlap sued Ridley Park and Harper Associates. Ridley Park argued that Harper Associates was negligent and thus liable for Maryann’s injuries. Maryann’s expert witnesses provided reports concluding the same.
Nevertheless, the trial court granted summary judgment to Harper Associates, finding that Ridley Park could not prove its case against codefendant Harper Associates because it did not call an expert witness to testify as to Harper Associates’ negligence. The trial court also concluded that the area in question was a “jungle” and, therefore, there was no legal duty for Harper Associates to inspect the tree. Thus, the case was thrown out without a jury ever hearing it.
Ridley Park appealed.
Held: The Superior Court held that Ridley Park was entitled to a trial on its claims.
Negligence is established by proving (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages. Expert testimony is required when the subject matter of the negligence is outside the skill and knowledge of an ordinary person.
The Court held that Harper Associates had a duty to visually inspect the tree, and Ridley Park Swim Club did not need an expert to prove it. In Pennsylvania, a possessor of land in or next to a developed or residential area is liable for harm caused to others outside of the land by a defect in a tree on the property if, in the exercise of reasonable care, the possessor would have discovered the defect and the risk it caused, and could have made it reasonably safe by taking action. The reasonable care standard encompasses, the Court said, includes at least “a duty to make a visual inspection. Under some circumstances, it may encompass more. Suppose the possessor of land in or adjacent to a developed area knows, or should know, through inspection or otherwise, that a defect in one of his trees poses an unreasonable danger to others outside of the land. In that case, he is under a duty to eliminate that danger.”
It did not matter, either, that the area in which the tree was growing was a “jungle.” The focus is on the adjacent land. A tree, the Court noted, “once growing in the midst of a forest, is no longer the same ‘natural object’ when a city grows around it or residential areas are developed in proximity to it.”
Because Ridley Park Swim Club’s parking lot, where Maryann was hurt, was developed land, Harper Associates had a duty to visually inspect the subject tree.
Even if expert testimony had been needed, the Court said, (and it was not), Maryann’s experts testified that the fallen tree was one that needed “to be regularly observed. It’s on a boundary between two properties. Both owners would have a responsibility to see what’s going on at that location. And when you have a situation where grapevines are beginning to load up the plants then there becomes a real responsibility to care for the trees in a way that they’re not being – people have to circulate on the site.” Even where expert testimony is needed, the Court held, it does not have to come from witnesses presented by the party with the burden of proof. Any competent expert will do.
At trial, one of Harper Associates’ principals testified that no one had ever visually inspected the subject tree. From that testimony alone, the Court held, a jury could have determined that Harper Associates breached its duty to inspect. But as to whether the failure to inspect was the proximate cause of the tree falling (and Maryann being clobbered), the Court agreed that expert testimony was required. “It requires specialized knowledge and training to determine if the tree, when it fell, was in such condition that visual inspection alone should have revealed a problem.”
Maryann’s expert admitted that “if a non-professional looked at the tree the tree itself might have looked alive. But you have to take it in context with the whole site. And if you look at photograph 90 where it shows that the vines are already pulling down another part of the tree, I think even to a lay-person that does not look normal.” Although a Ridley Park’s witness said he believed that the tree looked like a “live, healthy tree with tree branches and green leaves all over the parking lot” and a Harper Associates’ principal contended he inspected the jungle monthly, the Court held that “the jury could have reasonably found, that even if Harper Associates visually inspected the subject tree it would not have noticed the tree was a danger to individuals on Ridley Park’s property. The conflict in the testimony, however, was a factual question that must be decided by the jury… Thus, Ridley Park is entitled to a new trial.”
– Tom Root