Cline v. Dunlora S., LLC.

• Decision Date: 07 June 2012
• Docket Number: Record No. 110650.
• Citation: 726 S.E.2d 14
• Parties: Matthew W. CLINE v. DUNLORA SOUTH, LLC.
• Court: Virginia Supreme Court

726 S.E.2d 14

Matthew W. CLINE

v.DUNLORA SOUTH, LLC.

Record No. 110650.

Supreme Court of Virginia.

June 7, 2012.

M. Bryan Slaughter (J. Gregory Webb; E. Kyle McNew; MichieHamlett, on briefs), for appellant.

Terry Lynn for appellee.

Present: All the Justices.

Opinion by Justice S. BERNARD GOODWYN.

In this appeal, we consider whether the common law tort principles of this Commonwealth allow for the recovery of personal injury damages sustained due to a tree falling from private land onto a vehicle traveling on a public highway.

Background

On February 12, 2010, Matthew W. Cline (Cline) filed an action in the Circuit Court of Albemarle County against Dunlora South, LLC (Dunlora) and other entities for injuries he sustained when a tree fell on his vehicle as he was driving on a public highway. The defendants filed demurrers, and following briefing, the circuit court heard oral argument. At argument, Cline verbally requested and was granted a nonsuit on his claims against all defendants except Dunlora. The circuit court sustained Dunlora's demurrer, and it granted Cline leave to amend his complaint.

Cline filed an amended complaint alleging negligence and that Dunlora's conduct constituted a nuisance because “Dunlora's lack of care, inspection, servicing, and/or maintenance of the subject property and tree was a condition that imperiled the safety of the public highway immediately adjacent to the property and tree, creating a danger and hazard to motorists and/or pedestrians.” Dunlora filed a demurrer. After reviewing briefs, the circuit court sustained the demurrer, without leave to amend. Cline appeals.

Facts

The relevant facts are those alleged in Cline's amended complaint. Cline was driving on Rio Road East near its intersection with Pen Park Drive when a tree fell and crushed the roof, windshield and hood of the vehicle Cline was driving. Cline suffered severe and permanent injuries, including fractures of his cervical spine.

The tree was located approximately 15.6 feet from the edge of Rio Road East, on property “owned and/or controlled, inspected, maintained and/or serviced” by Dunlora. At the time of the incident, Rio Road East experienced traffic at a volume of 25,000 vehicles per day. The tree, approximately 25 inches in diameter, was “dying, dead, and/or rotten” at the time it fell, and had been in this condition for a period of “many years and exhibited visible signs of decay, which were open, visible and/or obvious,” and “[t]he tree's dead or decaying condition was or should have been known by Defendant Dunlora.” Also, “Dunlora knew or should have known of the hazards presented by the dead, dying and/or rotten tree adjacent to the public highway.”

Analysis

Cline argues that the circuit court erred in ruling that landowners in Virginia are not liable for personal injuries caused by trees that pose an imminent danger or cause actual harm to persons using an adjoining highway. He claims that this Court's opinion in Fancher v. Fagella, 274 Va. 549, 650 S.E.2d 519 (2007), determined that a landowner is liable for reasonably foreseeable property damage caused by trees located on adjacent property, and that the authorities relied upon by this Court in Fancher allow a claim under the facts alleged in Cline's amended complaint. Furthermore, he asserts that traditional principles of Virginia tort law support a claim as alleged in the amended complaint.¹

Dunlora counters that this Court's ruling in Fancher does not allow a cause of action for personal injuries arising from a tree falling on a public highway. It asserts that imposition of a duty on an owner of lands adjacent to a public highway to examine bordering trees would be unreasonable. It also claims that it is the responsibility of VDOT to protect travelers on public roadways from injuries caused by dangerous instrumentalities immediately adjacent to a roadway.

The legal question presented by a circuit court's decision to sustain a demurrer requires application of a de novo standard of review. E.g., Glazebrook v. Board of Supervisors, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003). In conducting this review, this Court accepts as true the factual allegations of the complaint, its attachments, and the reasonable inferences that follow, but not the pleader's legal conclusions. E.g., Yuzefovsky v. St. John's Wood Apts., 261 Va. 97, 102, 540 S.E.2d 134, 136–37 (2001). Evaluating allegations of negligence, this Court determines whether the factual allegations are sufficient to establish a duty of care. Id. at 106, 540 S.E.2d at 139. “Whether such duty exists is ‘a pure question of law.’ ” Id. (quoting Burns v. Johnson, 250 Va. 41, 45, 458 S.E.2d 448, 451 (1995)).

At common law, a landowner owed no duty to those outside the land with respect to natural conditions existing on the land, regardless of their dangerous condition. See, e.g., Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269, 271–72 (1996); Giles v. Walker, [1890] 24 Q.B.D. 656 (Eng.); W. Page Keeton, et al., Prosser & Keeton on Torts 390 (5th ed.1984).

[T]he courts in Virginia operate under a statutory mandate which provides that the common law of England, if not repugnant to the principles of the Bill of Rights or the Virginia Constitution, continues in full force and effect within the State, and shall “be the rule of decision, except as altered by the General Assembly,” Code § [1–200]. But this does not mean that common law rules are forever chiseled in stone, never changing. The common law is dynamic, evolves to meet developing societal problems, and is adaptable to society's requirements at the time of its application by the Court.

Williamson v. Old Brogue, Inc., 232 Va. 350, 353, 350 S.E.2d 621, 623 (1986).

This Court has never recognized that principles of ordinary negligence apply to natural conditions on land, but in Smith v. Holt, 174 Va. 213, 219, 5 S.E.2d 492, 495 (1939), we determined that an adjoining landowner had a nuisance cause of action if a sensible injury was inflicted by the protrusion of roots from a noxious tree or plant on the property of an adjoining landowner. The Court also eschewed the English common law distinction between natural and cultivated vegetation.²See id. at 214, 216–17, 5 S.E.2d at 493, 494.

The duty recognized by this Court in Smith is in accord with the broad common law maxim: “ sic utere tuo ut alienum non laedas ”—one must so use his own rights as not to infringe upon the rights of another. See, e.g., Burwell v. Hobson, 53 Va. (12 Gratt.) 322, 325 (1855). The principle of sic utere precludes use of land so as to injure the property of another. See, e.g., Smith, 174 Va. at 215–18, 5 S.E.2d at 493–95 (citing with approval Mississippi court's use of that principle as rationale for what was adopted as the “Virginia Rule”), overruled on other grounds by Fancher, 274 Va. at 555–56, 650 S.E.2d at 522;Raleigh Court Corp. v. Faucett, 140 Va. 126, 134, 124 S.E. 433, 435 (1924) (discussing the axiom with respect to surface waters).

In Fancher, the Court reexamined the issue of injury caused by the encroachment of vegetation onto adjoining property, and modified the “Virginia rule” expressed in Smith in two ways: (1) discarding the subjective requirement of “noxious” nature, and (2) imposing a limited duty on owners of adjoining residential lots to protect against actual or imminent injury to property caused by intruding branches and roots. 274 Va. at 555–56, 650 S.E.2d at 522.

Fancher concerned a sweet gum tree that was allegedly causing structural damage to an adjacent townhome property through its root system and overhanging branches. 274 Va. at 552, 650 S.E.2d at 520. Upon considering the approaches of various other jurisdictions to determine whether a nuisance exists and a right of action arises when vegetation encroaches across property lines, as well as the “Virginia Rule” stated in Smith, we adopted the Hawaii approach,³ as expressed by the Supreme Court of Tennessee: “ ‘[E]ncroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property.’ ” Id. at 556, 650 S.E.2d at 522 (quoting Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 364 (Tenn.2002)).

In Fancher, this Court articulated a rule allowing relief where trees encroaching onto the land of another constitute a nuisance, and held that trees encroaching upon the property of another are a nuisance where they cause actual harm or the imminent danger of actual harm. 274 Va. at 555–56, 650 S.E.2d at 522.Fancher therefore recognized that a trial court must determine whether circumstances are sufficient to “impose a duty on the owner of a tree to protect a neighbor's land from damage caused by its intruding branches and roots.” Id. at 556–57, 650 S.E.2d at 523.⁴

Cline asserts that the principles stated in Fancher, logically extended, dictate finding the existence of a duty in this case. We disagree. The rule expressed in Fancher, allowing imposition of a duty on the owner of a tree to protect a neighbor's land from damage caused by the tree, addresses a narrow category of actions arising from nuisance caused by the encroachment of vegetation onto adjoining improved lands.⁵See id. The duties imposed in Fancher and Smith are dramatically different than duties necessary to support an action for personal injury predicated upon a duty of a landowner regarding the natural decline of trees on his or her property, which is adjacent to a roadway. The Fancher line of precedent does not support a duty on the part of a landowner to inspect and cut down sickly trees that have the possibility of falling on a public roadway and inflicting injury. Thus, Fancher does not support finding a cause of action in the instant matter, where the alleged injuries arose from an allegedly dead or decaying tree falling from private land onto a vehicle traveling on a public highway.

In the case of Price v. Travis, 149 Va. 536, 140 S.E. 644 (1927), this...