Recent Court Determinations
This supplemental paper contained the cases which had been recorded since the
original paper was written and breaks them down according to the particular type of
property (trees, shrubbery, vegetation) and the location of the property involved.
Several of these cases are outlined below.
Standing Trees
Within the Right-of-Way
There are many cases where trees left standing in the right-of-way resulted in injury to
motorists who strayed from the paved roadway. In most of these cases, liability is a
question left to the jury which must consider the totality of the circumstances to
determine what constitutes neglect on the part of the state or its subdivisions. One
very important consideration is whether or not there have been prior crashes involving
the same tree or line of trees. Such situations would present actual or constructive
notice of a condition hazardous to the motoring public. Two cases where wrongful
death actions were filed because motorists struck trees within the right-of-way
disclosed similar findings. Chalk v. State, 147 A.D.2d 810, 537 N.Y.S.2d.685 (1989),
and Luceri v. County of Orange, 144 A.D.2d. 444, 534 N.Y.S.2d. 9 (1988) both dealt
with motorists who made avoidance maneuvers causing the driver in each case to
leave the paved surface of the road and collide with a tree. In each case, the tree that
was struck was located approximately six feet from the road on which each driver was
traveling.
In both cases the plaintiffs failed to establish negligence on the part of the defendants.
In Chalk, the evidence disclosed that construction plans provided that any trees five
feet or more from the edge of the finished pavement should be saved, if possible. The
Appellate Court held that the decision of the highway departments to leave the trees
standing conformed to proper and acceptable engineering plans. The absence of any
prior crashes at the same location further absolved the State from negligence.
In Luceri, the Appellate Court determined that there was absent any fact showing that
the County was in any way negligent and that negligence was the proximate cause of
the decedent's crash,or that the County was given notice of this dangerous condition
and failed to remedy it. Leaving the tree a six-foot distance from the road surface did
not constitute negligence, especially in light of the fact that there was no actual or
constructive notice to the County of any hazardous condition to the motoring public.
While the County has a duty to trim trees where branches and limbs could fall upon
vehicles along the traveled portion of the road, the County is not an insurer of those
injured on its roads.
Another case, Tinao v. City of New York, 112 A.D.2d. 363, 491 N.Y.S.2d. 814 (1985),
recognized that even though a government entity may have been negligent in the
maintenance of a roadway, there still must be evidence proving that particular
negligence was the proximate cause of the injury suffered. Tinao was a wrongful death
action where a motorist was killed when his vehicle left the pavement surface and
struck a tree in the shoulder of the road. The driver had been drinking and driving too
fast, and such actions were determined to be the proximate cause of the accident and
not the existence of flooding and a dangerous crack in the roadway.
Outside the Right-of-Way
The fact that a tree stands outside the right-of-way does not in and of itself relieve the
State or other responsible governmental agency of common law liability. However
liability may turn on the provisions of statute law, as shown in the differences of two
specific cases: Carney v. Department of Transportation, 145 Mich. App. 690, 378
N.W.2d. 574 (1985) and Peterson v. Department of Transportation, 154 Mich.App. 790,
399 N.W.2d 414 (1986).
The plaintiff in Carney was injured when the vehicle she was driving veered off the
paved roadway, plunged down a steep embankment, and struck a large tree outside
the right-of-way. Michigan was charged with failing to remove or guard against the tree
in question, thus breaching a statute that imposes a limited duty on Michigan DOT to
keep "the improved portion of the highway designed for vehicular travel" in a state of
"reasonable repair."
In this case the court held that there had been no breach of duty. The tree was not
within reach of the vehicle--even with all four wheels on the shoulder. The allegations
of negligence which are based solely on defendant's failure to remove or guard the tree
do not constitute a viable claim. The court further contended that the country road is
lined by numerous trees and other vegetation. Keeping a road in reasonable repair
does not include deforestation of the surrounding countryside. The statute, therefore,
relieves the State of any duty to guard against, by removal, barriers, signing, otherwise,
a tree located outside the right-of-way limits.
Again, the duty rests on the plaintiff to prove through evidence that the government had
actual or constructive notice of the defect in the roadway. If that had been the situation
with Carney, the State may have been held liable even though the tree was located
outside the right-of-way. Such were the circumstances evidenced in Peterson, where a
motorist was seriously injured when the vehicle she was driving went out of control after
the wheels slipped over a 2.5-inch dropoff between the paved surface and the shoulder
of the road and struck a tree located outside the right-of-way limits. In this case the
State was held liable--not because of the proximity of the tree but because the State
failed to repair the hazardous dropoff.
Fallen Trees
Bordering the Traveled Way
The fall of large trees or limbs on or into the path of vehicles poses a serious danger to
motorists. It is widely recognized by the courts that highway departments have a duty
to inspect trees bordering traveled ways to identify trees that are in weakened condition
and susceptible to falling. In order for a State or subordinate agency to be held liable
for personal injuries resulting from such accidents, it is necessary to show that the
government had actual or constructive knowledge of the diseased condition of the tree.
Within the Right-of-Way
Some states satisfy their duty of reasonable care by conducting drive-by inspections by
qualified personnel. If a diseased condition is noted by observers, the State has the
duty to take remedial action, whether the tree stands within the-right of-way or on
private land adjacent to the right-of-way.
In the case of McGinn v. City of Omaha, 217 Neb. 579, 352 N.W.2d 545 (1985), the
Supreme Court examined whether or not a drive-by inspection satisfied the State's
requirements of due care. In this case a tree, located in the right-of-way, fell upon an
automobile that was traveling on a street owned and maintained by the defendant City
of Omaha. Judgment was rendered for the plaintiff at trial, although the tree fell during
a severe storm and there was no previous knowledge that the tree was badly decayed
on the inside. The City appealed.
Upon appeal, the plaintiff could not prove that the City had failed to inspect the tree or
that visible signs of decay were apparent prior to the tree's fall. In fact, uncontroverted
evidence showed that the City of Omaha had instituted an inspection program to detect
and remove hazardous trees from the city streets. An expert from the University of
Massachusetts testified that few cities had such an inspection program, and Omaha's
was one of the best he had seen. The Court ruled that for practical purposes an
inspector must rely upon external indications when inspecting a tree for decay. This
case squarely supported the case law set forth in the original paper that drive-by
inspections by trained observers do satisfy the requirements of due care.
In several other cases, the variables of each case influenced the court rulings. In one
case in South Carolina, Marsh v. South Carolina Department of Highways and Public
Transportation, 380 S.E.2d. 867 (S.C. 1989), a tree standing in close proximity to the
highway had been leaning toward the highway for four years and was noticeable to
anyone traveling that roadway. The day before a crash where the tree fell onto a truck,
the tree had been leaning at a 60- or 70-degree angle. Road crews had made no effort
to remove the tree--although its diseased trunk was clearly evident even to a non-
expert. The court determined that the State did not exercise reasonable care and
found for the truck driver.
Another case in Connecticut, Roman v. City of Stamford, 16 Conn. App. 213, 547 A.2d
97 (1988), applied public versus private duty distinction when a vehicle was struck by a
rotted falling pine tree. In this case a City charter provision directed the City's park
commission to provide for the care and control of all trees within the limits of public
roads. Both the trial court and the Supreme Court reached the conclusion that a
municipality cannot be held liable for negligence if a city charter provision directs the
city's park commission to provide for the care and control of all trees within the limits of
public roads. (The public duty-private duty dichotomy admittedly is a complex matter.
For a more detailed discussion of this subject see "The Public Duty Defense to Tort
Liability," appearing in Selected Studies in Highway Law, Vol.4, at p.1868-N1.)
Outside the Right-of-Way Limits
As a general rule, it is the responsibility of the State and its subordinate agencies to
inspect trees located outside the right-of-way but within falling distance of the roadway.
But, as discussed previously in McGinn, duty lies in removing trees that pose imminent
danger. As the Appellate Court determined, it would be an impossible task to carefully
inspect every tree on property adjacent to the highway right-of-way. In one Louisiana
case, Walker v. Department of Transportation & Development (DOTD), 460 So.2d 1132
(La.App.1985), a wrongful death action resulted when a car collided with a 70-year-old
tree that was uprooted during a severe ice storm and fell from outside the right-of-way
to a position across the paved surface of the roadway. The DOTD could not be
charged with constructive knowledge of a buried root defect, and the appellant could
give no evidence to establish that the DOTD had either actual or constructive notice of
possible root defect in the tree concerned.
Overhanging Limbs and Roadside Vegetation
Trimming Limbs
It would seem obvious that the State and its agencies would be responsible for
trimming limbs that overhang onto the public way at heights that are in the path of
moving vehicles. When a wrongful death action was brought against a town in
Massachusetts because a motorcyclist was killed when his head struck an overhanging
limb, the town contended that pruning was a discretionary function of the
Massachusetts Tort Claims Act. In Sanker v. Town of Orleans, 27 Mass. App. Ct. 410,
538 N.E.2d 999 (1989), the court rejected the Town's contention on the grounds that
the decision was not a "planning activity protected by the discretionary function
exception" and found that day-to-day care and maintenance of a public road seems at
the opposite end from policy and planning. It ruled that municipal negligence in such a
respect is not sheltered as a discretionary function.
But recovery from this type of negligence can also be denied when there is contributory
negligence as determined in McMillen Transfer Inc. v. State, 225 Neb. 109, 402 N.W.2d
878 (1987). In this case, both the trial court and the Supreme Court reiterated that the
circumstances of individual cases determine what is reasonable care and what is
breach of duty. Such was the situation in McMillen, when the courts found that the
driver's prior knowledge of the highway, the tree limbs, and the trees lining the highway
and his decision to proceed along that highway close to the trees when there was
sufficient room in the main portion of the highway constituted negligence on his part
and denied him recovery.
Vegetative Growth
The duty to cut or remove vegetative growth has also been the focus of many law suits.
It is generally held that the State and subordinate agencies are under a common law
duty to cut or remove vegetation in order to restore or maintain highway visibility, or, in
the alternative, they have a duty to post adequate warning signs. As shown in the
original paper, their duty has been held to extend to obstructive vegetative growth on
adjacent private property, a duty being imposed to enter upon such property by
whatever legal means are necessary in order to take steps for the control or removal of
the hazard. (See Sanchez v. Clark County, 44 Ohio App. 3d 97,541 N.E. 2d 471.
1988.) There is conflicting opinion on this matter.
In Havens v. Harris TP, (530 N.E.2d 284 Ill.App. 3 Dist. 1988), the plaintiff sustained
injuries from roadside vegetation when his minibike collided with a truck on a country
road. The Appellate Court affirmed the action of the lower court that there was no
common law duty owed by the Township to cut or remove the vegetation and that such
a duty could only arise if an improvement were made to the road in question. It is
noteworthy that the view taken in Havens (that is, that the duty in question is
discretionary in nature) has not found general support, including those cases dealing
with the discretionary function exception of State Tort Claims Acts, wherein such
position has been advanced and rejected. ( See Sanker cited above and Hamric v.
Kansas City Southern Railway Company, 718 S.W.2d. 916 Tex. App. 1986.)
In a minority of cases, however, the courts have taken the position, on public policy
grounds, that to expose smaller units of government, such as counties and
municipalities, to liability for failure to control vegetative growth at hundreds, or
thousands, of road intersections within their jurisdictions, would cause an undue
financial burden and hardship, and, therefore no common law duty exits to cut or
remove such obscurant vegetation. (See Toumber v. Haas, 236 Kan. 138, 689 P.2d
808. 1984).
Finally, this supplemental report concluded that new matter in these recent cases was
largely confined to use of the public duty concept. According to the author, the public
duty defense had been underused in highway cases. Valuable instruction in the use of
the public duty defense can be found in the paper by Kenneth G. Nellis, entitled "The
Public Duty Defense to Tort Liability," appearing in Selected Studies in Highway Law,
Vol. 4, at p. 1868-N1.
