O'BRIEN v. United States, Civ. No. 9266.

• Decision Date: 30 September 1958
• Docket Number: Civ. No. 9266.
• Citation: 166 F. Supp. 231
• Parties: Dewey J. O'BRIEN, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Oregon

166 F. Supp. 231

Dewey J. O'BRIEN, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 9266.

United States District Court D. Oregon.

September 30, 1958.

E. B. Sahlstrom, Eugene, Or., for plaintiff.

C. E. Luckey, U. S. Atty., Portland, Or., for defendant.

SOLOMON, Judge.

Plaintiff filed an action against the United States pursuant to the provisions of the Federal Tort Claims Act, 28 U. S.C.A. § 1346(b), for injuries he received when a tree in the Willamette National Forest broke, fell across the adjacent highway and struck the vehicle in which plaintiff was riding.

The Willamette National Forest contains more than 1,600,000 acres of forest lands in their natural state and is located in Western Oregon. There are approximately 19,200,000 acres of land in Western Oregon, of which 82 per cent, or approximately 15,600,000 acres, consist of commercial and non-commercial forest lands. Practically all of these lands are commercial forests, and ownership thereof is about equally divided between the United States and private persons.

Just before its fall, the tree was on a hill about 84 feet upward and 112 feet from the center line of the road. It was dead and apparently had been dead for some time. Although Forest Service employees obviously knew that trees were on this tract and that some of them were dead, they did not know of the existence or condition of this particular one. A dead tree is not necessarily a dangerous tree.

The tree fell across the Old Willamette Highway at a point approximately 40 miles from Eugene, Oregon, the county seat of Lane County. In recent years, this highway has had little traffic because the new Willamette Highway 58 provides a more direct route for traffic between Eugene and Oakridge.

The State of Oregon maintains hundreds of miles of public highways which run through rural forest lands. Under various agreements between the State of Oregon and the Federal Government, the Oregon State Highway Department has assumed responsibility for the maintenance of the Old Willamette Highway. Its employees have made periodic inspections of the timberland adjoining the highway, and upon request have received permission from the United States Forest Service to cut particular trees deemed to be potential sources of danger.

Under the Federal Tort Claims Act, the United States is liable for damages

"for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S. C.A. § 1346(b).

Plaintiff contends that the United States as a property owner was negligent in failing to make periodic inspections of its forest lands in order to discover potential dangers to the traveling public. Whether such failure constitutes negligence must be decided in accordance with Oregon law. Olson v. United States, 4 Cir., 1949, 175 F.2d 510.

There are no Oregon cases in point. Plaintiff has asked us to find that Oregon will adopt the rule laid down in the following cases in which recovery was permitted: Brandywine Hundred Realty Co. v. Cotillo, 3 Cir., 1931, 55 F.2d 231; Brown v. Harrison, (C.A. Eng.1947) 177 L.T.R.(N.S.) 281, and Hay v. Norwalk Lodge No. 730 B.P.O.E., 1951, 92 Ohio App. 14, 109 N.E.2d 481. In the Brandywine case, plaintiff was driving on one of the principal through roads of Delaware, about two miles north of Wilmington, when a chestnut tree located on defendant's land, about 10 feet from the road, broke and fell on plaintiff's automobile. In Brown v. Harrison, plaintiff was injured when traveling on the highway from Knowle to Warwick, England, when a chestnut tree...