Taylor v. Olsen

• Decision Date: 16 May 1978
• Citation: 282 Or. 343,578 P.2d 779
• Parties: Bonnie Bell TAYLOR, Appellant, v. Marion OLSEN, Respondent, and Clackamas County, Defendant.
• Court: Oregon Supreme Court

Page 779

578 P.2d 779

282 Or. 343

Bonnie Bell TAYLOR, Appellant, v. Marion OLSEN, Respondent and Clackamas County, Defendant.

Supreme Court of Oregon,Department 2.

Argued and Submitted Nov. 8, 1977.

Decided May 16, 1978.

Chris P. Ledwidge, of Ledwidge & Ledwidge, Portland, argued the cause and filed briefs for appellant.

James C. Tait, Oregon City, argued the cause for respondent. With him on the brief were Hibbard, Caldwell, Canning, Bowerman & Schultz, Oregon City.

Before HOLMAN, P. J., and TONGUE and LINDE, JJ., and RICHARDSON, J. Pro Tem.

LINDE, Justice.

Plaintiff sued for damages for injuries she sustained when her car, on a dark and windy January evening, struck a tree which shortly before had splintered and fallen across a Clackamas County road. The trial court directed verdicts for defendants Clackamas County, the owner of the right-of-way on which the tree was located, and Marion Olsen, the adjoining landowner who was alleged to be in possession of the same location. Plaintiff appeals from the judgment entered on the directed verdict for Olsen.

The parties disagree about the measure of responsibility of one in possession or control of land near a public road for injuries to travelers caused by such trees. Defendant maintains that he had no duty of reasonable care with respect to the tree involved in this case. Plaintiff assigns as error, first, that the trial court directed a verdict for defendant on this issue, and second, that the court excluded testimony by local witnesses which was offered to show that defendant should have recognized the danger that the tree might fall onto the road.

This court has not previously had occasion to consider the question of liability for injuries caused by the fall of roadside trees. However, such injuries have long been common enough to develop lines of cases in other jurisdictions. ¹ Generally, a possessor's duty of reasonable care toward the traveling public will arise from his actual knowledge of the dangerous condition of the tree. ² The more difficult question is whether he will be held liable if he should have known of the danger, and specifically, under what conditions he has a duty to inspect his trees to discover a latent danger.

In assessing conditions under which they have denied such a duty as a matter of law, courts have often been frank to base their conclusion on the impracticality or economic cost of obligatory inspection in relation to the probability of harm from falling trees or limbs. Half a century ago, the Supreme Court of Minnesota rejected such an affirmative duty in these terms:

Many of our public highways pass through timbered country, and upon the prairies owners have been encouraged to plant trees. It will add a very heavy burden on the servient fee owner if he must exercise the supervision and care for the dominant easement in this respect. If such a duty is laid upon him he becomes liable, in case of a failure, to respond in damages that may sweep away the value of his whole farm by some unfortunate accident like the present. Severe wind storms are not rare in this state, and a jury influenced by sympathy for the injured party are (sic ) so prone to find the accident the result of negligence upon the slightest pretext.

Zacharias v. Nesbitt, 150 Minn. 369, 372-373, 185 N.W. 295, 296 (1921). Similarly, in a case from West Virginia, a federal court of appeals thought that to allow liability upon an allegation that defendant should have known of the dangerous condition of the tree "will impose a new and unusual burden upon the owners of forest lands," unjustified by the danger to the public that might result from the failure to inspect. "This danger, in the case of rural lands upon a country road, is, to say the most, a very remote one; and in view of the burden which the requirement of inspection would impose, it is too remote, we think, to justify a holding that the landowner is charged with such a duty." Chambers v. Whelen, 44 F.2d 340, 341 (4th Cir. 1930).

About the same time, however, the federal court in another circuit let a jury find liability when the latent decay of the falling tree "was known or by the exercise of ordinary care could have been known" by the landowner, where the tree stood in what the court called "a tract of suburban forest" two miles outside a city. Brandywine Hundred Realty Co. v. Cotillo, 55 F.2d 231, 231 (3d Cir. 1931), cert. denied, 285 U.S. 555, 52 S.Ct. 411, 76 L.Ed. 944 (1932); Annotation, 11 A.L.R.2d 626, 629 (1950). It was only to be expected that the balance of considerations quoted above would shift with increasing suburban and interurban automobile traffic on the one hand and, on the other hand, an increasing readiness to place on owners of land as much as other enterprises the cost of risks associated with their activities. The shift appears between section 363 of the 1934 Restatement of Torts, which qualified the general rule of nonliability to persons outside the land for natural conditions on the land only by a caveat "expressing no opinion" as to roadside trees, and the 1965 Restatement of Torts 2d, which recognizes a duty to "exercise reasonable care" on the possessor in an "urban area" and reduces the caveat of "no opinion" only to "rural" areas. ³

In a federal tort claim arising in Oregon 20 years ago, the United States District Court had to anticipate what this court would hold when the falling tree was one of many thousands lining the roads through the Willamette National Forest and the road across which it fell was relatively lightly traveled. Judge Solomon concluded that on those facts, Oregon would not apply the duty of care stated in Brandywine Hundred Realty Co. v. Cotillo, supra, but rather Judge Parker's reasoning in Chambers v. Whelen, quoted above. O'Brien v. United States, 166 F.Supp. 231 (D.Or.1958). The case was tried without a jury, and the Ninth Circuit on appeal found it unclear whether the district court had held as a matter of law that the abutting landowner owed no duty of reasonable care with respect to roadside trees or as a matter of fact that this duty had not been breached. The court of appeals thought that the second view of the trial court's decision was more probable and sustained it as correct on the facts. But even if the decision stated a rule of law, the court of appeals thought that the statement could be affirmed insofar as it was narrowly limited to "the duty of the owner of forest land in a sparsely-settled area adjoining a little-used highway." O'Brien v. United States, 275 F.2d 696, 698 (9th Cir. 1960).

We think O'Brien was right in stating that, except for extreme situations, the question of the landowner's or possessor's attention to the condition of his roadside trees under a general standard of "reasonable care to prevent an unreasonable risk of harm" is to be decided as a question of fact upon the circumstances of the individual case. The extent of his responsibility either to inspect his trees or only to act on actual knowledge of potential danger cannot be defined simply by categorizing his land as " urban" or "rural." Surely it is not a matter of zoning or of city boundaries but of actual conditions. No doubt a factfinder will expect more attentiveness of the owner of an ornamental tree on a busy sidewalk (see, e. g., Turner v. Ridley, 144 A.2d 269 (D.C.Mun.App.1958); Plesko v. City of Milwaukee, 19 Wis.2d 210, 120 N.W.2d 130 (1963)) than of the United States Forest Service in the O'Brien situation, but the great variety of intermediate patterns of land use, road use, traffic density, and preservation of natural stands of trees in urban and suburban settings prevents a simple "urban-rural" classification. See Hensley v. Montgomery County, 25 Md.App. 361, 367-370, 334 A.2d 542, 546-547 (1975). Moreover, other factors than the character of the land and of the road are relevant in deciding whether a particular defendant was in a position where he should have given reasonable attention to the potential dangerousness of a roadside tree.

Even in a rural setting, for instance, it can make a difference whether the defendant or others for whom he is responsible are engaged in activities that involve the trees at the location in question or that alter the natural conditions at this location. Decisions like Chambers v. Whelen and O'Brien, supra, stress the burden and the impracticality of a general duty to inspect standing trees when imposed on owners of large tracts of rural land simply as landowners. As a Maryland court recently summarized its review of the cases, the onus on a homeowner of inspecting a few trees in his yard is modest, but the "practical difficulty of continuously examining each tree in the untold number of acres of forests" or in "sprawling tracts of woodland adjacent to or through which a road has been built (can be) so potentially onerous as to make property ownership an untenable burden. This would be particularly true for an absentee landowner." Hensley v. Montgomery County, supra, 25 Md.App. at 366-367, 334 A.2d at 545. It is less obviously true, however, for one who is engaged in logging or in actively developing the land. Thus our neighboring State of Washington, where standing timber plays much the same role as in Oregon, distinguished O'Brien, supra, and permitted a plaintiff injured by a fallen tree on a "remote" road to go to the jury against a bank as owner of forest land because the land was not in its natural condition but had recently been logged. Albin v. National Bank of Commerce, 60 Wash.2d 745, 375 P.2d 487 (1962). Consequently, we examine the present case with these factors in mind.

In this case, the road in question was a two-lane blacktop highway serving a number of communities in Clackamas County. There was testimony that it was used by an average 790 vehicles a day; in other words, a fallen tree might encounter a vehicle within an average of about two minutes, depending on the time...