Hensley v. Montgomery County

• Decision Date: 20 March 1975
• Docket Number: No. 602,602
• Citation: 25 Md.App. 361,334 A.2d 542
• Parties: , 94 A.L.R.3d 1148 Edward J. HENSLEY v. MONTGOMERY COUNTY, Maryland, et al.
• Court: Court of Special Appeals of Maryland

Page 361

25 Md.App. 361

334 A.2d 542, 94 A.L.R.3d 1148

Edward J. HENSLEY v. MONTGOMERY COUNTY, Maryland, et al.

No. 602.

Court of Special Appeals of Maryland.

March 20, 1975.

Certiorari Denied May 23, 1975.

James L. Baer, Silver Spring, with whom was Robert P. M. Brady, Annapolis, on the brief, for appellant.

Craig Rice and Jeffrey R. Schmieler, Silver Spring, with whom were Carlton L. Saunders and Saunders & Schmieler, Silver Spring, on the brief, for appellees.

Argued before MORTON, DAVIDSON and LOWE, JJ.

LOWE, Judge.

Edward Hensley was driving to the River Falls Subdivision which was his place of employment located on Stable Lane west of Brickyard Road in Montgomery County. The new development contained homes already occupied by 'one hundred, one hundred twenty five' families, whose ingress and egress was obtained by use of Brickyard Road, an eighteen foot wide secondary roadway running north from MacArthur Boulevard at which point appellant had entered it. Its asphalt surface succumbs to a gravel surface a few hundred yards past Stable Lane where appellant turned to reach his place of employment, as did 'fifty to seventy-five percent' of the 'probably . . . one hundred fifty' other employees. Moments after appellant turned off MarArthur Boulevard onto Brickyard Road-but well before the Stable Lane turnoff-a large tree limb from a dead tree fell through appellant's windshield seriously injuring him. Appellant sued Olga Mary Mazza, the apparent owner of the property adjoining the road, as well as Montgomery County, the governing body responsible for the road. At the conclusion of the presentation of his case, a verdict was directed against him and judgment entered accordingly. It is from that judgment that he now appeals.

Appellant had driven past this point twice a day, to and from work, for about six months but failed to notice either 'the limb or the tree' which set back approximately 15 to 16 feet from the road. The tree from which the limb fell was located on a 219 acre wooded tract, neither developed nor inhabited. There is no evidence, even from appellant's father who worked with him and who had particularly observed the tree in question from time to time, that the limb overhung the road. From the photographs in evidence the tree's branches appear to have grown upward rather than outward.

The appellant's father testified that the nature of his work for the past twenty-eight years entailed the removal of dead trees from building sites. This experience caused him to note the presence of the dead tree during the calendar year before the accident occurred.

'I have seen the tree before, probably 1970, or I had noticed the tree dead. Of course, I do notice dead trees. We look very carefully when we are working when we are clearing and they do stand out to me.'

However, Mr. Hensley stated that 'It didn't seem to create any hazards or any problem in (his) opinion . . ..' Furthermore he indicated that:

'. . . probably the tree would never stand out or no one else would ever notice. The kind of work I am doing, it is noticeable to me.'

Appellant concedes that the fall of the limb was due to the natural process of decay.

To impose a liability upon the landowner, appellant must have shown not only that the tree constituted a danger to the lawful users of the abutting public road, but that the owner of the land upon which it stood was cognizant of the deteriorated condition of the tree or should have been cognizant of its condition.

The evidence produced by appellant was summarized and considered by us 'in the light most favorable' to him as we must when reviewing the propriety of a trial court's grant of a motion for directed verdict. Ramsey v. D. P. A. Assoc., 265 Md. 319, 289 A.2d 321. The evidence showed no actual notice that the condition of the tree constituted a danger to travelers on the road, either express or implied, to either appellee. Any inference which might have arisen from appellant's father's having seen the tree prior to the accident was negated by his own apologia for having done so, an opinion he buttressed with his self-styled expertise. In order to prevail then, appellant must rely upon constructive notice which rests upon strictly legal presumptions, as opposed to implied notice which is a form of actual notice arising from inferences of fact. Baltimore v. Whittington, 78 Md. 231, 235, 27 A. 984.

Authority upon which to rely is limited indeed by the peculiar nature of the accident. The likelihood of a portion of a tree falling from natural causes coinciding in time and space with a passing motorist so as to cause him injury is so remote as to have been but twice reviewed by Maryland's appellate courts-and those over a hlaf-century ago, Ver-Vac Bottling Co. v. Hinson, 147 Md. 267, 128 A. 48 involving an active intervening cause, and Washington County v. Gaylor, 140 Md. 375, 117 A. 864, which did not have before it the question of liability of an abutting landowner. Broader research, however, discloses that such accidents have occurred in several jurisdictions, indicating that they are less than remarkable, albeit fortunately infrequent. See Annotations, 11 A.L.R.2d 626; 72 A.L.R. 615; 49 A.L.R. 840 and 19 A.L.R. 1021. Once one is awakened to the possibility, a roadside review of dead or dying trees during a single Sunday drive makes it wondrous indeed that such accidents are not a relatively common occurrence.

The cases reviewed ponder what duties should be assigned to 1) the governing body responsible for the safe condition of the road in question, Cf., Carroll County v. Staubitz, 231 Md. 309, 190 A.2d 79; Birckhead v. Baltimore, 174 Md. 32, 197 A. 615; Baltimore County v. Wilson, 97 Md. 207, 54 A. 71, 56 A. 596; and 2) the adjoining property owner who is charged with the legal duty 'sic utere tuo ut alienum non la das'-so use your own as not to injure another. Brandywine Hundred Realty Co. v. Cotillo, 55 F.2d 231 (3d Cir.).

Disregarding for the moment to refinements of proofs requisite at a trial, the most troubling cases throughout the country have been those such as this, where there was no actual notice of the dangerous condition (dead tree). In addition to a landowner's duty to exercise reasonable care to prevent the fall of a tree into a highway, some courts imposed a duty entailing constant and periodic inspection to discover the natural processes of decay of trees abutting highways. Since we are faced with two defendant appellees, we will discuss the law relating to the landowner first and the County thereafter, noting in advance that the standards for each are not altogether dissimilar.

The rural rule

One reason Professor Prosser has been considered the 'King of Torts' is his ability to state succinctly a principle encompassing the results of state by state study of an issue. Our own review verified the accuracy, both within and without this country, of his statement on the inspection question:

'The rule of non-liability for natural conditions was obviously a practical necessity in the early days, when land was very largely in a primitive state. It remains to a considerable extent a necessity in rural communities, where the burden of inspecting and improving the land is likely to be entirely disproportionate not only to any threatened harm but even to the value of the land itself. Almost without exception the cases applying it have arisen in the country. But it is scarcely suited to cities, to say that a landowner may escape all liability for serious damage to his neighbors, merely by allowing nature to take its course. There are indications that a different rule is developing as to urban centers.

This is well illustrated by the cases of dangerous trees. It is still the prevailing rule that the owner of rural land is not required to inspect it to make sure that every tree is safe, and will not fall over into the public highway and kill a man, although there is already some little dissent even as to this, and at least if the defendant knows that the tree is dangerous he will be required to take affirmative steps. But when the tree is in an urban area, and falls into a city street, there is no dispute as to the landowner's duty of reasonable care, including inspection to make sure that the tree is safe. The cases of trees therefore suggest that the ordinary rules as to negligence should apply in the case of natural conditions, and that it becomes a question of the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented.' (Emphasis Added). W. Prosser, Law of Torts, (3rd ed.) § 57 at 362, 363.

To those who dwell in urban areas with one or two trees in their yard at most, the onus of inspection is modest. The farmer, the developer or the landed gentry who owns large and sometimes sprawling tracts of woodland adjacent to or through which a road has been built, may find the task of inspecting for trees dead, dying or decayed so potentially onerous as to make property ownership an untenable burden. This would be particularly true for an absentee landowner.

The rural rule not requiring inspection has been recognized by the Restatement where the liability of urban property owners is treated as an exception to the rural rule. ¹ Comment upon subsection (2), 2 Restatement 2d, Torts, § 363. Throughout the country the courts have accepted the distinction between rural and urban lands and generally absolved owners of rural wooded lands from the duty to inspect trees to ascertain whether they are defective. See, e. g., Lemon v. Edwards, 344 S.W.2d 822 (Ky.); Zacharias v. Nesbitt, 150 Minn. 369, 185 N.W. 295; Chambers v. Whelen, 44 F.2d 340 (4 Cir.), 72 A.L.R. 611; O'Brien v. United States, 275 F.2d 696 (9 Cir.); Harry v. Norwalk Lodge No. 730, B.P.O.E., 92 Ohio App. 14, 109 N.E.2d 481; Albin v. National Bank of Commerce, 60 Wash.2d 745, 375 P.2d 487 (Wash.), and Annotations in 19 A.L.R. 1016; 49 A.L.R. 840; 72 A.L.R. 615 and ...