Jones on Landowner's Duty

James T.R. Jones (Brandeis School of Law) has posted Kentucky Addresses a Landowner's Duty to Those Off the Premises: The Saga of Falling Trees on SSRN. Here's the abstract:

At common law, landowners had no duty to protect those off their premises from harm caused by natural vegetation on their land. Courts feared that without this rule a landowner might be ruined merely for leaving property in a state of nature. Gradually, some jurisdictions moved away from this position. The California Supreme Court completely abolished the old natural condition exemption from landowner liability. Other states took a more moderate approach, and upheld the traditional doctrine in cases of rural land while viewing trees alongside urban roadways differently. Kentucky had not addressed the subject until a recent case where a large dead tree on an urban lot fell onto an adjacent landowner's garage. The Kentucky Court of Appeals held that a landowner in an urban or heavily populated area has a duty to others outside of his or her land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises. The Kentucky Supreme Court has granted discretionary review of this decision, so Kentucky's position on the off premises liability issue is ripe for final decision. The abstracted article suggests that at minimum Kentucky should hold urban landowners responsible for harm trees on their property cause when they fall off their land. The article concludes Kentucky should adopt the rule of the California Supreme Court that landowners always have a duty to protect those off their premises against natural conditions on their land.

Ben Barros

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