Falling Tree Limbs 8 13 09

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					                                             Falling Tree Limbs

                           Tree Wardens, Tree Pruning & Highway Defects

                                             By Sally A. Roberts

         Trees and tree limbs have generated many falling object cases. Trees and their limbs
usually fall because they are decayed and rotting or because they are blown about in a storm.
Although the latter situation may allow the assertion of an “Act of God” defense, the former
situation is more common and has generated by far more litigation. A typical case in one in
which a dead tree limb falls on the plaintiff’s car. In a Nebraska case, the plaintiff argued that a
statute requiring property owners to remove dead trees from their property imposed strict
liability on the defendant. However, the court held that a violation of the statute was, at most,
merely evidence of negligence. The court concluded that a trial verdict in the plaintiff’s favor
required reversal with the case being remanded because the defendant did not have constructive
knowledge of the tree’s defective condition prior to the accident and also because the plaintiff
had not proven that the defendant otherwise had been negligent.1

        In Connecticut, plaintiffs injured by falling tree limbs often bring cases under the state or
municipal highway defect statutes, Conn. Gen. Stat. §§ 13a-144 and 13a-149. Whether a
plaintiff’s claim comes within the purview of §§ 13a-144 and 13a-149 is a question of law.2 A
defect in a highway that would give rise to liability under either §§ 13a-144 and 13a-149 has
been generally defined as “any object in, upon, or near the traveled path, which would
necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or
which, from its nature and position, would be likely to produce that result.” Hewison v. New
Haven, 34 Conn. 136, 142 (1867),

       The Connecticut Supreme Court has answered the question of whether a falling tree
branch constitutes a defect that comes within the purview of § 13a-144 in the negative. Several
seminal highway defect cases are illustrative of the analysis involve.

         In 1867, the Court in Hewison recognized that the defect need not be part of the roadbed
itself. It gave, among other examples, tree limbs overhanging the roadway near the ground
which necessarily obstructed the use of the road. On the other hand, Hewison pointed out that
those objects which have no necessary connection with the roadbed or public travel, which
expose a person to danger, not as a traveler, but independent of the highway, do not ordinarily
render the road defective. Hewison listed trees, walls of buildings standing beside the road, and
objects suspended over the highway which are so high as to be entirely out of the way of
travelers, as examples of the latter. Hewison further pointed out that a person could be injured
by them, but the use of the highway, as such, does not necessarily bring about the injury. Such
objects may be a nuisance that the governmental unit may have an obligation to abate, but they
are not defects in the highway. Hewison mentions a tree at the side of the road with branches
protruding across the road low enough to interfere with travel or an object that would frighten
even gentle horses.

1
    See McGinn v. City of Omaha, 217 Neb. 579, 352 N.W.2d 545, 548-549 (1984).
2
    See, e.g., Betton v. Comm'r of Transp., 2005 Conn. Super. LEXIS 1125.


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         In the 1911 Dyer case,3 the plaintiff was injured by a limb that had broken off a tree
extending over the sidewalk on which he had been walking. Although the tree in Dyer had
existed in its dangerous condition for more than a year, and constituted a nuisance upon the
highway, the overhanging limb did not constitute a defect in the highway because it did not
obstruct travel thereon. In Dyer the Court reasoned that if there is a defective condition that is
not in the roadway, it must be so direct a menace to travel over the way and susceptible to
protection and remedial measures which could be reasonably applied within the way that the
failure to employ such measures would be regarded as a lack of reasonable repair.

        The Connecticut Supreme Court explored this distinction more recently in Comba v.
Ridgefield, 177 Conn. 268 (1979).4 One of the plaintiffs in Comba was injured when a large tree
limb extending over the traveled portion of the highway broke off and fell onto the vehicle in
which she was riding. The trial court rendered judgment in favor of the defendants, the town of
Ridgefield and the Commissioner of Transportation, on grounds of sovereign immunity. The
Supreme Court affirmed, stating: “The condition alleged … did not obstruct, hinder or operate as
a menace to travel. It was a condition that could cause injury, but that injury could result even to
one who was not a traveler on the highway. A person could be injured by the limb; but the use
of the highway, as such, would not necessarily have led to the injury.” Id., 271.

        Many subsequent have cited Comba’s reasoning as authority in falling tree cases brought
under the highway defect statute.. In Toomey v. Burns,5 the decedent driver was transporting the
passenger and decedent passenger when a tree limb fell on the automobile, injuring the passenger
and killing the decedent driver and the decedent passenger. The plaintiffs commenced an action
against the Transportation Commissioner under the state highway defect statute, § 13a-144. The
court noted that the State is immune from suit unless it has legislatively consented to be sued,
and that the State Highway Defect statute is a legislative exception to the common law rule of
sovereign immunity and was to be strictly construed in favor of the State. Citing to Comba, the
court held that tree limbs overhanging a public highway did not fit within the definition of a
highway defect.

        Improper pruning of trees by tree wardens and the commissioner of transportation,
pursuant to statutes and ordinances, is another avenue that plaintiffs injured by falling tree limbs
often seek to pursue. For example, Conn. Gen. Stat. § 13a-140, which provides for removal of
trees along state highways, state in relevant part that “(a) The commissioner may cut, remove or
prune any tree, shrub or other vegetation situated wholly or partially within the limits of any state
highway so far as is reasonably necessary for safe and convenient travel thereon.” Id. The court
in Toomey v. Burns6 found that § 13a-140 did not impose a duty on the transportation
commissioner to prune trees near the highway, because it used the term “may,” rather than the
term “shall,” and the term “may” was discretionary.


3
  Dyer v. Danbury, 85 Conn. 128 (1911).
4
  See also McIntosh v. Sullivan, 274 Conn. 262 (2005); Kozlowski v. Comm'r of Transp., 274 Conn. 497 (2005);
Tyson v. Sullivan, 77 Conn. App. 597 (2003).
5
  Toomey v. Burns, 1990 Conn. Super. LEXIS 1317.
6
  Toomey v. Burns, 1990 Conn. Super. LEXIS 1317.


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         Conn. Gen. Stat. §§ 23-597 and 23-65(b)8 have been interpreted by the Connecticut
Supreme Court as vesting exclusive control in a town tree warden over trees located in whole or
in part in public roadways.9 The Court has held that owners of private adjoining land were not
liable to anyone accidentally injured by a tree falling in the roadway.10 In Kondrat v. Town of
Brookfield, 97 Conn. App. 31 (2006), the plaintiffs sued defendants, a city and a landowner,
seeking damages for personal injuries, wrongful death, and other claims associated with an
accident caused by a tree that fell on a car. The tree was located on the landowner’s property,
approximately eight feet from the road. Ten years after cutting limbs off the tree, the landowner
informed the city that the tree was beginning to split. A representative of the city inspected the
tree but did not have it removed. The tree later fell on a vehicle traveling on the road. The
Appellate Court held that the record did not support an assumption that the tree immediately
threatened the life and limb of those who traveled on the road. The landowner’s responsibility
for denuding the tree was difficult to distinguish from what his liability would have been if the
tree had been hit by lightening. Thus, the existing law absolved the landowner of liability.

         Decaying trees often give little indication that they may be dangerous. Rot tends to
proceed from the inside out, and the tree can easily become unstable long before there are any
visible indications of trouble. Accordingly, the outcome in many cases revolves around whether
the defendant should have discovered the tree’s condition and the extent of the defendant’s duty
to inspect trees for rot and other signs of interior decay. Generally, depending upon where the
tree is located, a landowner has no duty to inspect any tree on the property unless the landowner
knows that the tree is decayed and may fall.11

        This was the issue presented in a New York case in which the plaintiff was struck by an
overhanging limb that fell from a neighbor’s maple tree during a windstorm.12 Prior to the
accident, there had been no dead leaves or bare spots on the limb to indicate the presence of any
disease. Based upon such evidence, the Court concluded that the neighbor had no actual or
constructive knowledge of the defect and was thus not liable for the plaintiff’s injuries. The
court reasoned that there is no duty to consistently check all trees for evidence of invisible decay,

7
  Conn. Gen. Stat. § 23-59 provides in relevant part: “The town or borough tree warden shall have the care and
control of all trees and shrubs in whole or in part within the limits of any public road or grounds and within the
limits of his town and borough. … Such care and control shall extend to such limbs, roots or parts of trees and
shrubs as extend or overhang the limits of any such public road or grounds. … Whenever, in the opinion of the tree
warden, the public safety demands the removal or pruning of any tree or shrub under the tree warden’s control, the
tree warden may cause such tree or shrub to be removed or pruned at the expense of the town or borough and the
selectman or borough warden shall order paid to the person performing such work such reasonable compensation
therefor as may be determined and approved in writing by the tree warden. Unless the condition of such tree or
shrub constitutes an immediate public hazard, the tree warden shall, at least ten days before such removal or
pruning, post thereon a suitable notice stating the tree warden’s intention to remove or prunes such tree or shrub.”
8
  Conn. Gen. Stat. § 23-65(b) provides in relevant part: “Any person, firm or corporation … who removes, prunes,
injures or defaces any shrub or ornamental or shade tree, within the limits of a public way or grounds, without the
legal right or written permission of the town tree warden, the borough tree warden, the city forester, the
Commissioner of Transportation, the Department of Utility Control, or other authority having jurisdiction, shall be
fined not more than the appraised value of the shrub or tree and shall be liable civilly for damages in any action
brought by the property owner or the authority having jurisdiction affected thereby.”
9
  See Muratori v. Stiles & Reynolds Brick Co., 128 Conn. 674, 675 (1942).
10
   See e.g., Muratori v. Stiles & Reynolds Brick Co., 128 Conn. 674 (1942).
11
   See, e.g., Wesleyan College v. Weber, 238 Ga. App. 90, 517 S.E.2d 813, 816-817 (1999).
12
   See Ivancic v. Olmstead, 66 N.Y.2d 349, 488 N.E.2d 72, 74, 497 N.Y.2d 326 (1985).


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and constructive notice, which requires a landowner to take reasonable steps to prevent injury,
can be imputed only for readily observable signs of decay.13

        In certain situations involving falling tree limbs, however, a landowner may be held to a
somewhat higher duty of inspection. For example, in urban areas where trees are less common, a
possessor may be required to make a closer inspection of those relatively few trees on the
property than might be appropriate in more densely wooded rural areas. The traditional common
law rule of non-liability for natural conditions,14 although obviously a practical necessity years
ago when land remained largely in an undeveloped state, is scarcely suited to modern cities. For
this reason, landowners in urban areas can no longer escape all liability for serious damage to
their neighbors merely by allowing nature to take its course. Thus, if a tree in an urban area
might foreseeably fall into a city street, the landowner has a duty of reasonable care, including
inspection, to make sure that the tree is safe.15

        Whatever the precise limits of a landowner’s duty, falling tree cases, like almost all
premises liability actions, ultimately involve proof of (1) the existence of a dangerous condition,
and (2) the landowner’s knowledge of that danger. These two issues ultimately depend upon the
facts of each case, and the difference in potential outcome is illustrated by the following two
factually similar cases. In the first, a Louisiana case,16 a dead tree limb fell from a live tree
owned by the defendant homeowner’s association and struck the plaintiff, a resident of the
defendant’s housing complex, as the plaintiff sat in a swing only two feet away from a pave
walkway that ran through a common area of the defendant’s complex and near a playground
where children played and other people often walked. The plaintiff claimed that even a cursory,
periodic inspection by the defendant’s groundskeepers would have identified the visibly dead
limb, which could have been removed at negligible cost. Accordingly, the court concluded that
13
   See Ivancic v. Olmstead, 66 N.Y.2d 349, 488 N.E.2d 72, 74, 497 N.Y.2d 326 (1985).
14
   See, e.g., Lemon v. Edwards, 344 S.W.2d 822, 823 (Ky. Ct. App. 1961). Applying the traditional “rural-urban”
distinction in a falling tree case, the court ruled that the owner of densely wooded land bordering on a little used
road had no duty to inspect his trees to prevent their falling on passing motorists where the owner had no actual
knowledge of the trees’ condition. See also O’Brien v. United States, 275 F.2d 696, 698 (9th Cir. 1960). Affirming
a judgment that the federal government was not liable for injuries to a truck passenger who was struck by a falling
tree while riding through a national forest, the court considered the competing interests involved between protecting
travelers along public highways and burdening rural landowners with a duty to undertake expensive preventative
action to avoid such injuries. The court concluded that as a matter of public policy no Oregon court would impose
upon the owner of rural forest lands a duty to inspect the trees for hazardous conditions. But see Carver v. Salt River
Valley Water Users’ Ass’n, 8 Ariz. App. 836, 446 P.2d 492, 498-99 (1968) (court declined to apply “rural-urban”
distinction in a falling tree case, reasoning that we see little reason why a possessor of land with a row of trees
adjacent to a heavily traveled highway should be automatically relieved of liability merely because the locality is to
be labeled as “rural,” regardless of how great the risk and how small the effort needed to eliminate it). See also
Hensley v. Montgomery County, 25 Md. App. 361, 334 A.2d 542, 546 (1975) (refusing to extend responsibility of
inspection from urban to suburban forest land, court discussed in detail the characteristics of “suburban forest” land
in a falling tree case); Chambers v. Whelen, 44 F.2d 340, 342 (4th Cir. 1930) (court declined to impose upon the
abutting landowners any liability for injuries sustained by a motorist who was struck by a falling tree, due to the
existence of a West Virginia statute which imposed upon state highway officials the duty of removing all dead trees
situated within 50 feet of the highway).
15
   See, e.g., Israel v. Carolina Bar-B-Que, Inc., 292 S.C. 282, 356 S.E.2d 123, 126 (1987) (plaintiff was injured
while seated in a car that was parked in the defendant restaurant’s parking lot when a large limb fell onto the car
from the defendant’s property. Relying upon evidence that the tree limb was partially decayed, the court held that
the defendant was liable for negligence in failing to discover the defect and remedy the hazard).
16
   Green v. Fox Crossing, Inc., 754 So. 2d 339 (La. Ct. App. 2000).


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the limb constituted an unreasonably dangerous condition for which the defendant could be
charged with knowledge.17

        In a second case, from Iowa,18 the court reached a completely opposite conclusion.
There, a tree limb overhanging the plaintiff’s property fell onto the plaintiff’s foot. Just as in the
Louisiana case, the defendants had no actual or constructive notice that the tree posed a hazard to
the plaintiff or anyone else prior to the time of the plaintiff’s injury. However, in the Iowa case,
the plaintiff’s own expert witness testified that although the tree was unsafe, there was nothing
about the tree that would have visually alerted the defendants to have any concern over whether
it was unsafe. Thus, the Iowa court concluded that the defendants were not liable because they
did not know of the danger. Although neither defendant in either of these two cases had any
actual or constructive knowledge of any dangerous condition relating to the injury-causing trees
on their respective properties, had the defendant in the Louisiana case even casually looked at the
tree in question, the defective limb would have been immediately obvious, whereas even if the
Iowa defendant had undertaken such a visual inspection of its trees, the hazardous condition of
the limb would likely still have remained undiscovered.

        Apart from the so-called rural-urban distinction, some jurisdictions have also attempted
to define the landowner’s duty with respect to falling trees and limbs by reference to a
preliminary determination of whether the injury-causing defect was of “natural” or “artificial”
origin, with a duty to inspect imposed only where the defect was found to be “artificial.”19 In
most instances, however, this rule has been considered completely unworkable, leading many
courts to reject it in favor of a rule requiring the exercise of reasonable care, regardless of
whether the injury-causing tree is otherwise classified as natural or artificial.20




17
   Green v. Fox Crossing, Inc., 754 So. 2d 339 (La. Ct. App. 2000).
18
   Meyers v. Delaney, 529 N.W.2d 288 (Iowa 1995).
19
   Meyers v. Delaney, 529 N.W.2d 288 (Iowa 1995).
20
   See, e.g., Griefield v. Gibraltar, 24 So. 2d 356, 358 (Miss. 1946) (en banc) (plaintiff’s house was damaged when
an oak limb fell onto it from the defendant neighbor’s adjoining property. Discussing the traditional common law
“foreign-artificial” distinction, the court explained that defendant would not be liable if the oak tree was “natural”
but liability would be imposed if the tree had been planted, even by defendant’s predecessor in title). See also
McCarthy v. Ference, 358 Pa. 485, 58 A.2d 49, 56 (1948) (court imposed liability for injuries to bus passengers who
were injured when the bus in which they were riding was struck by a landslide of rocks and debris from defendant’s
adjacent hillside roadcut. The court explained that the roadcut constituted an “artificial” defect for which the
defendant landowner was liable).


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