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The Armstrong County Common Pleas Court has held that a landowner may be responsible for an accident when her tree uprooted and fell from her land onto a state highway. As described in Wynkoop v. Luke, the tree struck a vehicle in which the plaintiffs, husband and wife, and their 13-year-old son, were riding. The parents were injured and their son killed. The tree had been located on the owner’s land, about 15 feet beyond the edge of PennDOT’s right-of-way on a rather steep but traversable slope. The plaintiffs sued for negligence, alleging that the landowner had failed to properly inspect the area for dangerous conditions, failed to discover the condition and permitted the condition to exist by failing to remove the decayed tree from an unstable, rocky slope. Also, they alleged that she knew or should have known of imminent danger to the traveling public because nearby trees in a similar condition had previously fallen onto the road. Natural Conditions The defendant, Gloria Luke, moved for summary judgment on the theory that a landowner in a rural area is not liable for physical harm caused to others outside of the land by a natural condition of the land. Luke pointed out that the evidence established that the dead tree on her 59-acre tract, and the reasons for its fall, could all properly be labeled a “natural condition” of her land. In making this argument, Luke relied on Section 363(1) of the Restatement (Second) of Torts, which draws a sharp distinction between natural and artificial conditions. Section 364 of the Restatement imposes liability on a landowner for physical harm caused by an artificial condition on the land, as contrasted with one that is considered “natural.” The plaintiffs responded to Luke’s motion by asserting that Pennsylvania’s appellate courts had rejected any distinction between natural conditions and artificial conditions. Therefore, negligent landowners should be responsible under both circumstances. The Armstrong County Court was reluctant to extend the Restatement’s principle of liability for artificial conditions to natural conditions such as trees because that would impose a duty on all landowners to inspect even large tracts for dangerous natural conditions, and either warn of them or remedy them. That kind of a duty would necessarily not be limited to trees, but would include such things as “springs, ponds, creeks, lakes, snow and ice formations, rock formations, soil conditions” and other, similar conditions, all of which could conceivably cause harm outside of the land itself. The court felt that such a duty could be “extraordinarily burdensome and impractical to perform in many cases.” But the court acknowledged that the Pennsylvania Superior Court had not hesitated to find such a duty in tree and vegetation cases, particularly where a plaintiff was injured in an automobile wreck allegedly caused by a line-of-sight obstruction at an intersection. Rural Land In Wynkoop, the court pointed out that Section 363(2) of the Restatement (Second) of Torts seems to suggest another distinction; that is, between urban and rural landowners. The Restatement specifies that an “urban landowner” should be liable to those using a public highway for physical harm resulting from the landowner’s failure to exercise reasonable care “to prevent an unreasonable risk of harm resulting from the condition of trees on the land near the highway.” However, the Restatement provides a caveat to that section which states, “The institute expresses no opinion as to whether the rule stated in Subsection (2) may not apply to the possessor of land in a rural area.” In light of the appellate cases and that caveat, the Armstrong Common Pleas Court was willing to hold both urban and rural landowners to the same standard of liability. In reaching its conclusion, the court stated, “The urban-rural dichotomy certainly was once a shorthand way of distinguishing between busy urban thoroughfares and sleepy country roads. Today, many rural roadways accommodate very high volumes of traffic. “The record in this case contains evidence that, on an average, more than 5,600 motor vehicles per day traveled past the site where defendant Luke’s tree crushed the Wynkoop car – a rate of nearly one vehicle every 15 seconds. Taking into account the likely fact that the road is little used between midnight and 5 a.m., the daytime stream of traffic would be even higher. If, as it indeed happened, a tree from Luke’s land would fall upon the highway, the chance that it will cause serious harm to a motorist is substantial.” In light of that, the court denied Luke’s motion for summary judgment and held that a possessor of land even in a non-urban area is subject to liability to users of a public highway. However, as in all negligence cases, the amount of care required by the law must be in keeping with the degree of danger involved. The answer might be different in a more remote rural area. Degree of Care In this case, the tree was not only set back from the paved portion of the highway, but it was also 15 feet beyond the highway right-of-way. While some of the tree limbs may have overhung the highway right-of-way, they did not overhang the paved portion of the highway. The owner had 59 acres of land, and the opinion does not analyze how much of that bordered on highways. In any event, if Pennsylvania courts extend inspection and warning obligations for natural conditions of land even into large rural tracts, owners will have to maintain a heightened awareness of the potential dangers of not only trees that are located near or above a road, but also springs, ponds, creeks, lakes, snow and ice formations, rock formations and soil conditions. Future cases may have to establish how far that duty of care extends. For example, will owners of large rural tracts be required to bring out tree experts every so often to check on the condition of their trees and bushes located near public ways? And, if so, how frequently? What standard of care will be “reasonable” to warn travelers of dangers from dead trees or accumulations of ice or rock that could roll down into the right-of-way? Will owners have to build protective walls or fences? If potential dangers are discovered about some of these conditions, can the owner get off the hook by simply posting signs along the road? One may speculate about how much safer drivers feel when they see signs that warn them “DANGER! FALLING ROCKS!” In any event, if owners are made more aware of their legal duties and take remedial action to actually reduce hazards, perhaps passersby, even in rural areas, will not be left out on the limb. HARRIS OMINSKY is of counsel to Blank Rome, which has offices in Pennsylvania, New York, New Jersey, Delaware, the District of Columbia, Maryland, Florida and Ohio. He is a past president of the Pennsylvania Bar Institute.

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