I wrote this, and thought I posted it, on Tuesday, but someone asked me where Tuesday's DD was and I couldn't find it in my re

I wrote this, and thought I posted it, on Tuesday, but someone asked me where Tuesday's DD was and I couldn't find it in my records, although the completed version was in my word processor. I guess the dog ate it!!

Ed.

Daily Development for Tuesday, July 3, 2001

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

Today's Daily Development is from a piece in the Blank, Rome newsletter written by the irrepressible Harris Ominsky, who is a much funnier guy than the editor. So, enjoy.

We are grateful to Harris and his firm for permission to publish. I made a number of editorial changes without Harris' permission, as he’s on vacation. I hope he'll return in time to regale us at the DIRT luncheon in Philly.

NUICANCE; FALLING TREES: Where tree falls from owner’s property during a windstorm, and damages neighbor's property, owner is liable only if it was negligent in discovering the tree's special propensity to fall and failing to remedy it.

Szlachta v. Home Owners Association, Stotesbury Estates, PICS case No. 002173 (C.P. Montgomery, Pa., Oct. 30, 2000)

A windstorm felled a tree in a naturally wooded property onto adjoining residential property of the plaintiff, causing property damage. A trial court awarded damages to the neighbor, but on appeal, the common pleas court granted the defendant's Motion for Summary Judgment and toppled the judgment below.

The appeals court ruled that even if one assumes all of the factual disputes are resolved in favor of the plaintiff, there is no liability because a visual inspection of the tree by a reasonable person would not have disclosed a dangerous condition. The court cited the

Restatement (Second) of Torts, §265,

"A possessor of land in or adjacent to a developed or residential area is subject to

liability for harm caused to others outside of the land by a defect in the condition of a

tree thereon, if the exercise of reasonable care by the possessor (a) would have disclosed the defect and the risk involved therein and (b) would have made it reasonably safe by repair or otherwise."

It is noteworthy that the defendant owner was a homeowners' association, which owned

what was described as a naturally wooded common area intended to "enhance the benefit the community." The court concluded that the association did not invite others to use the woods, and therefore it had no duty to make more than a visual inspection of the trees.

The plaintiff had argued that the report of its expert, an arboricultural consultant,

established that the defendant knew or should have known the tree was in a dangerous

condition. However, the court seized on a color photograph which was contained in the

report and, based on the photograph, concluded there was absolutely no evidence that a

visual inspection of the property would have indicated to a reasonable person that the

tree was dangerous and posed a risk of harm to the adjacent property. The court stated,

"even in the exercise of due care, a visual inspection of the property by a reasonable

person would not disclose a dangerous condition that was only detectable by a

horticultural expert conducting a detailed examination." Reporter's Comment 1: The court seemed to adopt a traditional doctrine about responsibility for damage caused in natural woodlands. However, in granting a summary judgment, a court must resolve all disputed facts in a light most favorable to plaintiff. In this case, the court used a postmortem photograph to conclude that the expert's conclusions were incorrect.

In a sense, the expert got "hoisted" by his own tree. Perhaps he would have been better

off submitting his report without a photo. Or, perhaps, he should have used a different

photograph.

Reporter's Comment 2: While those of us with trees may sleep like logs if we believe

that our responsibilities are limited, we may be hanging on a thin reed. Do we have a

greater duty than the community association had? If we don't "invite others" to use our

property, would the Szlachta court permit us to get by with a mere duty to discover only

obvious defects in our trees?

What is the "reasonable care" which is required of us? Some of us walk by our trees

every day and never pay attention to them. Others study every nuance of change, such as more brown leaves and large broken branches left on our driveways or roofs after a

storm. Should those be considered the kind of clues that "would have disclosed the

defect and the risk involved therein?" (See Restatement (Second) of Torts, supra.)

What if everyone else in the neighborhood hires tree trimmers and tree doctors, but I

don't? Suppose a tree blight is prevalent? Can I just look the other way or do I have

some responsibility to find out why everyone else is trimming and treating their trees?

What if I notice neighbors' trees are falling down after big storms? Am I then obligated

to have an expert check out mine? Would "reasonable care" require me to notice what

my neighbors are doing about soil conditions, tree nourishment or tree blight when I

have similar trees living in the same environment?

While it is comforting to read the Szlachta case, tree owners may still want to use an

expert to check on their trees periodically, even though a superficial glance or a photo

reveals nothing. Otherwise, when one of their weakened trees falls on their neighbor’s house (or children) during the next storm, they might find themselves out on

a limb.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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