Wesleyan College v. Weber, No. A99A0419

• Decision Date: 13 May 1999
• Docket Number: No. A99A0419, No. A99A0459.
• Parties: WESLEYAN COLLEGE v. WEBER et al. Weber et al. v. Wesleyan College.
• Court: Georgia Court of Appeals

517 S.E.2d 813

238 Ga. App. 90

WESLEYAN COLLEGE v. WEBER et al.

Weber et al. v. Wesleyan College.

Nos. A99A0419, A99A0459.

Court of Appeals of Georgia.

May 13, 1999.

Chambless, Higdon & Carson, Mary M. Katz, Macon, King & Spalding, Frank C. Jones, John P. Brumbaugh, Atlanta, for appellant.

Reynolds & McArthur, W. Carl Reynolds, Katherine L. McArthur, Charles M. Cork III, Macon, for appellees. ELDRIDGE, Judge.

Wesleyan College ("Wesleyan") owns a narrow strip of land between four-lane Forsyth Road (U.S. 41) and a parallel railroad. This strip of property was across the highway from Wesleyan's president's house. Such strip was undeveloped and contained a large number of trees, primarily loblolly pines.

On February 7, 1995, at approximately 7:45 p.m., Paulette Weber was killed when one of the pine trees fell across Forsyth Road in front of her car, causing her to crash into the tree blocking the roadway. The tree was 94 feet tall and was approximately 47 feet from the edge of the road within the strip. The tree was 18 inches in diameter. Heavy vines and undergrowth surrounded the tree, and vines grew up the tree. In the general area where the tree fell, the trees looked blighted, and there were 15 to 25 trees that were leaning, looked dead, or had fallen. Prior to the incident, laypeople had observed dead trees in this area of the strip, and the bad condition of the trees should have been readily apparent to a non-expert. Not far from the fallen tree, a tree leaned out over the road. Many trees were covered with heavy vines that robbed moisture and blocked sunlight, so that the tops of the trees had little more than a small green fringe on them. Some 70 to 85 percent of the tree canopy surrounding the fallen tree was dead. Hartel, Wesleyan's expert, counted 19 dead trees in the area of the fallen tree.

On the railroad side of the fallen tree in question was a four-foot-long rotten cavity two feet above the base of the tree. Such rotten cavity had existed between ten and fifteen years. Tree fungus had entered the point of damage and traveled in all directions, including the root system. The tree was nearly dead, and root rot had destroyed the root system. Root rot caused the tree to fall; however, expert opinion differed as to whether the rotten cavity caused the root rot. The tree was down an embankment, and vines covered the cavity; the cavity was not observable from the road because of its location. The cavity was observable from the railroad side, which could be reached by crossing 50 feet from the roadway. A layperson in a walk-by could see the cavity in the winter or when leaves were not on the vines. The root rot was not observable externally. The man who cut up the tree testified that trees next to the fallen tree looked dead from the base to the top, sawed like they were rotten, and had little bark on them. The expert testimony was that the tree was actually alive and had few green needles at the top, although it was not healthy, but other witnesses testified that they saw no green needles on or around the tree. The tree crown growth was between a five and ten percent ratio to the entire height of the tree. A healthy loblolly pine should have a green leafy crown between 25 and 30 percent of the tree. The tree was between 35 to 40 years old, which was approximately half-way through its normal life span. The tree was in a state of decline. A cross section of the trunk showed growth in each year of its life; however, in recent years the growth rings had become smaller and smaller, almost merging, which indicated that the tree was not healthy. From the growth rings, it was apparent that the tree had been damaged in its tenth year of growth, which moderated the growth over the next eight years, and in the last nineteen years of life, the growth rings showed a decline; the last six years of growth rings showed an advanced state of decline. According to the Wesleyan expert, the bark was tight, intact, and free from pine beetle infestation, but lay witnesses stated that the bark was dead, brown looking, and bug eaten. The core, where the city workers cut it from the road, appeared rotten.

Starley, a motorist who first collided with the tree, did not consider the weather "real windy," although it made the trees move, but not "bad weather" or "blowing real hard." Meteorologist Laing reviewed 25 sites across the state and Bibb County on the date in question and found maximum gusts of wind no greater than 35-40 mph; this was a brisk wind. From his experience, it took winds in excess of 60 mph to knock over a healthy tree; and winds in excess of 58 mph are classed as a "severe thunderstorm." Winds of 35-40 mph were not uncommon throughout Georgia in February. Wesleyan occupied a 200-acre campus, and part of the campus was heavily wooded. The strip where the tree fell was away from the main campus. The ground crew took down trees as necessary; however, after a piece of tree removal equipment failed, Wesleyan used an outside tree service.

William Singleton was the leader of the grounds crew and reported to Don Boughton, Physical Plant Director. While inspecting the strip before the incident, Singleton observed a dead and leaning tree in the general area of the fallen tree and reported this and numerous other dead and dying trees in the area of the fallen tree to Boughton. Boughton asked if Singleton could cut down the trees, but Singleton told him that traffic would have to be stopped to take down the trees, so it was not done. Boughton testified that Singleton's report came after the incident. However, Singleton could not identify the fallen tree as the dead and leaning tree. An expert witness testified in his opinion that the tree that fell had not been leaning prior to the fall. A defense expert witness stated that in his opinion he would not have advised the cutting down of the tree prior to its fall.

On February 7, 1997, Thomas Weber, individually and as next of kin, surviving spouse, and administrator of the estate of Paulette Weber, deceased, brought suit against Wesleyan in the Bibb Superior Court. The jury tried the case from January 8 through 13, 1998, and returned a substantial verdict. Wesleyan moved for judgment notwithstanding the verdict or, in the alternative, a new trial. On June 22, 1998, the trial court denied the j.n.o.v. but granted the new trial on the grounds of newly discovered evidence. Both parties sought discretionary appeals, which were granted.

Case No. A99A0419

Wesleyan contends that the trial court erred in denying its motion for directed verdict and for j.n.o.v., because the tree had no "visible, apparent, and patent" decay sufficient to give rise to a duty to cut down the tree and provide notice of a premises defect. We do not agree.

The standard[s] for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50 (Code Ann. § 81A-150). In reviewing grant of a directed verdict or a judgment notwithstanding the verdict, we must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. Bryant v. Colvin, 160 Ga.App. 442, 287 S.E.2d 238 (1981). A judgment notwithstanding the verdict is improperly granted in the face of conflicting evidence, and an appellate court must view the evidence in the light most favorable to the party who secured the verdict. Id.

Pendley v. Pendley, 251 Ga. 30-31, 302 S.E.2d 554 (1983).

As owner and occupier of the strip of land, Wesleyan had a duty to keep the premises and approaches safe for persons placed in danger from a dangerous condition on the premises. OCGA § 51-3-1. Thus, approaches to the strip include property along the adjoining highway. See Motel Properties v. Miller, 263 Ga. 484, 486(2), 436 S.E.2d 196 (1993); Todd v. F.W. Woolworth Co., 258 Ga. 194, 196-197(1), 366 S.E.2d 674 (1988); Elmore of Embry Hills v. Porcher, 124 Ga.App. 418, 419-420, 183 S.E.2d 923 (1971). The owner of the premises is under a duty to make a reasonable inspection of the premises to protect invitees. Fulton Ice &c. Co. v. Pece, 29 Ga.App. 507, 515(1), 116 S.E. 57 (1923). However, the common law duty as to individuals who are not on the premises at the time of injury but are injured by a dangerous defect on the premises differs.

" 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."... "A landowner who knows that a tree on his property is decayed and may fall and damage the property of an adjoining landowner is under a duty to eliminate the danger, even if the tree grew on and became part of the land by natural condition."... We are specifically limiting liability in this case to patent visible decay and not the normal usual latent micro-non-visible accumulative decay. In other words, there is no duty to consistently and constantly check all pine trees for non-visible rot as the manifestation of decay must be visible,...