Willis v. Maloof, 74717
| Decision Date | 10 September 1987 |
| Docket Number | No. 74717,74717 |
| Citation | 361 S.E.2d 512,184 Ga.App. 349 |
| Parties | WILLIS v. MALOOF et al. |
| Court | Georgia Court of Appeals |
Victoria J. Hoffman, Atlanta, for appellees.
Plaintiff Maloof was severely injured when a tree fell on him. Throughout the over thirty years the parties had lived as next-door neighbors, plaintiff had always assumed the tree belonged to defendant Willis. However, the undisputed evidence presented at trial showed the tree grew on the boundary of plaintiff's land and that of defendant, the adjoining landowner. Plaintiff claims the tree was diseased and defendant is liable in negligence for failure to remove or remedy the hazard created by the tree. A mistrial was declared when the jury was unable to reach a verdict. The case is now before this court on defendant's interlocutory appeal of the trial court's denial of his motion for directed verdict.
1. The issue of ownership and control over a tree situated on the boundary between two adjoining landowners appears As in the case of a party wall, both parties have a duty to maintain the tree and take reasonable steps to guard against any hazardous condition the tree may pose. Cf. Hay v. Norwalk Lodge, etc., 92 Ohio App. 14, 109 N.E.2d 481 (1951) (). Since plaintiff also had a duty to maintain the tree, he may not recover from defendant for negligent maintenance. 1 Cf. Swentzel v. Holmes, 175 S.W. 871 (Mo.1915) ().
to be one of first impression in Georgia. After careful consideration of the various approaches urged by the parties we adopt, by analogy, the rule applicable to party walls. We hold that adjoining landowners of a tree on the boundary do not own the tree as tenants in common, but " 'each owns in severalty the part thereof which rests upon his side of the line, with an easement of support from the other.' " Wilensky v. Robinson, 203 Ga. 423, 427, 47 S.E.2d 270 (1948). In this manner "each of the landowners upon whose land any part of a trunk of a tree stands has an interest in that tree, a property in it, equal in the first instance to, or perhaps rather identical with, the part which is upon his land; and in the next place embracing the right to demand that the owner of the other portion shall so use his part as not unreasonably to injure or destroy the whole." Robinson v. Clapp, 65 Conn. 365, 379-380, 32 A. 939 (1895).
2. Moreover, plaintiff presented no evidence to support a finding that defendant had breached any duty to maintain the tree. In regard to liability for a defective tree the ordinary rules of negligence apply. The owner of a tree is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition. "[T]here is no duty to consistently and constantly check all ... trees for non-visible rot as the manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage." Cornett v. Agee, 143 Ga.App. 55, 57, 237 S.E.2d 522 (1977).
Here, defendant testified he worked around the base of the tree often as he cultivated a vegetable garden in his yard, near the tree, almost every year. He denied any knowledge that the tree was diseased and denied seeing any evidence which would lead him to suspect the tree was unhealthy. Plaintiff's expert, who inspected the tree after it fell, testified at least three visible conditions indicated to him that the tree was diseased and posed a hazard. The bark at the base of the tree curved under instead of outward indicating to the expert that the tree was virtually devoid of roots. A cavity or hollow in the side of the tree and fungus growing on the bark indicated to the expert that the tree was diseased and in the process of decaying. The expert testified that in his opinion the average person's "attention would have been drawn" to these conditions. Even...
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Lewis v. Krussel, 24599-0-II.
...has actual or constructive knowledge of defects affecting his trees has a duty to take corrective action. Dudley, 166 A.2d at 744; Willis, 361 S.E.2d at 513; Mahurin, 28 Ill.Dec. 356, 390 N.E.2d at 525; Burke, 571 A.2d at 299; Ivancic, 497 N.Y.S.2d 326, 488 N.E.2d at 73; Nationwide Ins. Co.......
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...had notice of the dead and decaying trees on their property, which could impart a legal duty on them to act, see Willis v. Maloof, 184 Ga. App. 349 (2), 361 S.E.2d 512 (1987) ; and whether Clure's injuries were reasonably foreseeable under the circumstances of this case. Accordingly, the tr......
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Wesleyan College v. Weber, No. A99A0419
...143 Ga.App. 55-57, 237 S.E.2d 522 (1977); accord Wade v. Howard, 232 Ga.App. 55, 58, 499 S.E.2d 652 (1998); Willis v. Maloof, 184 Ga. App. 349, 350(2), 361 S.E.2d 512 (1987). "The only duty imposed upon defendant was that of the reasonable man; defendant would not be charged with the knowle......
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...moot following the subsequent mistrial and his retrial (compare Rhyne v. State, 209 Ga.App. 548(1), 434 S.E.2d 76 with Willis v. Maloof, 184 Ga.App. 349, 361 S.E.2d 512 and Phillips v. State, 133 Ga.App. 461, 211 S.E.2d 411), in the interest of judicial economy we accept appellate jurisdict......
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Some Preliminary Thoughts on the Law of Neighbors
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Timber - Falling Tree Liability in Georgia
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