Thursday, December 29, 2016
What’s a Rural Landowner’s Responsibility Concerning Crops, Trees and Vegetation Near an Intersection?
A question that I get periodically involves the responsibility, if any, of a farmer or rural landowner to make sure that crops, trees or other vegetation on their property don’t obscure a motorist’s view on a public roadway. It’s an interesting question, and the answer involves a discussion of the negligence principles of tort law. The answer can also depend on the particular jurisdiction, and it may be surprising.
Every negligent tort case contains four elements that a plaintiff must establish in order to prevail – (1) duty (2) breach (3) causation and (4) damages. The defendant must have had a duty to act in a certain way towards the plaintiff, must have breached that duty, and the breach of the duty must have caused the plaintiff’s damages. There usually isn’t any question about the breach or damages elements – those are typically self-evident in most cases. Sometimes a question does arise concerning the duty element. But, most of the controversy in any given negligent tort case is commonly focused on the causation element. Did the defendant’s breach of the duty owed to the plaintiff actually cause the plaintiff’s damages? In other words, the resulting harm to the plaintiff must have been a reasonably foreseeable result of the defendant's conduct at the time the conduct occurred.
Some things are reasonably foreseeable and other things are not, and an individual will be held liable for harm that is reasonably foreseeable or reasonably expected to result from the defendant's actions. For example, in a Georgia case, a landowner was not liable for the death of a motorist struck by a falling tree. While the tree leaned over the road, there was no visible decay present and the landowner had no notice of the dangerous condition. Wade v. Howard, 499 S.E.2d 652 (Ga. Ct. App. 1998). There must be a causal connection - a causal linkage - between the defendant's action and the plaintiff's harm. But, what about crops, trees or other vegetation that obstructs a motorist’s view? Does the landowner have a duty to maintain crops, trees and other vegetation in a manner that doesn’t block the view of the motoring public? That issue came up in a recent Kansas case. If there is no duty, then the causation issue is moot.
In Manley v. Hallbauer, No. 115,531 (Kan. Ct. App. Dec. 23, 2016), the defendants (a married couple) owned about 11 acres of land that abutted an intersection of an infrequently traveled gravel county road. The intersection was uncontrolled – there were no traffic signs. Trees on the defendants’ property completely obstructed the view for the last 50 to 60 feet before the intersection. Two vehicles collided at the intersection, with the driver of one of the vehicles dying in the crash. The decedent’s estate sued the landowner for negligence, claiming that the defendants had a duty to trim their trees to maintain visibility at the intersection. The trial court granted summary judgment for the defendants and the estate appealed.
The appellate court affirmed. The court noted that the trees had been on the property when the defendants acquired it about five years before the accident, and that the defendants had not received any complaints from the County or anyone else about the trees. The court also noted that there was no record of any prior accidents at the intersection and also no evidence that either driver attempted to stop or slow down before entering the intersection.
On the duty issue, the court noted that it existed if the plaintiff was a foreseeable plaintiff and the probability of harm was foreseeable. In other words, the question was whether a reasonable landowner would have foreseen a probability of harm to motorists from the obstructed view. But, as the court noted, that question cuts both ways. Drivers also have responsibility to drive with more caution when view is obstructed. Similarly, under the Restatement [Second] of Torts §343A, the court noted that landowners don’t have a duty to protect people from open and obvious dangers. That, principle, the court noted, relates to the foreseeability issue. The defendants could reasonably assume that motorists would protect themselves from the obvious visual obstruction by taking additional precaution. Also, under the Restatement [Second] of Torts §363, a provision that Kansas courts have applied numerous times, a rural landowner has no liability for physical harm caused to someone outside the land itself when the injury was caused by a natural condition on the land, such as trees. The court rejected the approach of the Restatement [Third] of Torts §54 that makes landowners liable if the landowner knew of the risk or the risk was obvious as not being consistent with Kansas law. Instead, the rule in Kansas is one of no-liability, no-duty. The court noted that was also the rule in Arkansas, Florida, Illinois, Iowa, Massachusetts, and Virginia. In all of these jurisdictions, landowners don’t owe a duty to motorists to cut down naturally occurring vegetation that obstructs the view at an intersection. If the condition on the land is artificial, however, a different rule applies. In that situation, landowners owe a duty of reasonable care to motorists.
Hallbauer points out the general rule that if a natural object on the premises injures another person, the landowner is not liable. There is no duty to remedy a natural hazard. That is particularly the case with respect to rural land. But, over time, some states have modified the common-law rule, particularly as applied to trees and entrants onto the property. See, e.g., Lewis v. Krussel, 101 Wash. App. 178, 2 P.3d 486 (2000); Cobb, et al. v. Town of Blowing Rock, No. COA09-1443, 2011 N.C. App. LEXIS 1398 (N.C. Ct. App. Jul. 5, 2011). In such situations, landowners owe a duty to ensure that their trees (and other natural conditions) do not cause harm. However, that’s not the rule in Kansas (and some other states).
While Hallbauer was brought on negligence principles, another theory that could have possibly applied was nuisance. Nuisance law prohibits land uses that unreasonably and substantially interfere with another individual's quiet use and enjoyment of property. Nuisance cases exist that involve encroaching limbs and roots of neighboring trees. The courts have adopted four basic rules for determining if trees constitute a nuisance. Under the “Massachusetts Rule,” a landowner’s right to protect property from encroaching limbs and roots of an adjacent property owner’s trees is limited to self-help (i.e., cutting-off branches and roots at the point they cross the property line). The “Virginia Rule” is a slight modification of the Massachusetts Rule and can result in a tree owner being held liable for damage caused by the tree and being required to cut back roots and limbs if the tree poses a risk of actual harm or an imminent danger. In such situations, if self-help is inadequate as a permanent remedy, complete removal of the tree may be an available remedy. The “Restatement Rule” (based on Restatement (Second) of Torts §§839-840 (1979)) requires a landowner to control vegetation that encroaches upon adjoining land if the vegetation has been planted or is maintained by a person, but not if the vegetation is “natural.” Under the “Hawaii Rule,” living trees and plants are ordinarily not nuisances. However, trees and plants can become a nuisance when they cause harm or pose an imminent danger of actual harm to adjacent property.
It may come as a surprise to some that in numerous states rural landowners have no duty to make sure that crops, trees and other vegetation don’t obstruct the view on public roadways. But, remember, motorists also have a duty to operate their vehicles in a safe manner. Is it foreseeable that a motorist might not operate their vehicle in a safe manner? Probably, but that’s not a landowner’s problem with respect to natural conditions that present an open and obvious danger. Even so, it’s still a good idea not to plant crops so that when they are grown they could cause a visual obstruction. The same can be said for other vegetation too. It’s just a common courtesy. Not necessary under the law, but certainly a good thing to do.