The Kentucky Supreme Court granted discretionary review in Commonwealth, Transportation Cabinet, Department of Highways v. Shannon D. Sexton, (2006-SC-0454-DG). Click here for previous digest and link to text at this site.
This is an appeal of a decision from the Jefferson Circuit Court, Judge Ann Shake presiding.
The Court of Appeals in a published decision written by Judge Henry (with Judge Combs concurring) held "that a landowner in an urban or heavily populated area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises."
SCOKY Justice Will Schroder while sitting as a COA Judge filed a dissenting opinion in the COA decision:
Our first inquiry is whether or not the Department owed a duty of care to Sexton. We all agree that under present law, there is no duty. The majority believes it’s time to create a duty. I must dissent. The General Assembly could, and probably should consider creating such a duty, but not the courts. Also, the urban/rural distinction invites a number of questions, such as do we classify by city limits, population density, lot size, etc?
Attorney Daniel Alvarez is representing the claimant injured by the tree, and Andrew Draut the Commonwealth.