Torts (Landowner’s Duty for Trees): KY TRANSPORATION CAB. V. KY ENVIRONMENTAL PROTECTION CAB. BOARD OF CLAIMS (COA; 5/26/2006)

KY TRANSPORATION CAB. V. KY ENVIRONMENTAL PROTECTION CAB. BOARD OF CLAIMS
TORTS: Landowner owes duty to neighbor to exercise reasonable care to avoid unreasonable risk of harm from defective or unsound trees on his premises (NEW TORT)
BOARD OF CLAIMS: Duty applied to state as landlord in board of claims
2005-CA-000005
PUBLISHED
AFFIRMING (HENRY)
DATE:  5/26/2006

CA affirms TC order (Jefferson Cir. Ct., Hon. Ann O’Malley Shake, judge, presiding) affirming decision of the Board of Claims awarding damages to Sexton against Dept. of Highways.

A dead tree fell from a lot owned by the Dept. onto Sexton’s garage, destroying the garage and an auto. The Board awarded him $1,000 for his homeowner’s deductible and $7,000 for the car, finding that the Dept. breached a duty of ordinary care to Sexton by failing to discover and remove a dangerous or defective condition from its vacant lot. The TC affirmed.

On appeal, the Dept. argues immunity, error and that the wrong legal standard was applied. The Dept. argues that without a defined duty, removing the tree is a discretionary, not ministerial, act for which the state enjoys immunity. CA holds that the case depends not upon whether the act was discretionary or ministerial, but whether the Dept. owed a duty and whether the duty was breached. Citing scant case law and the traditional rule that a possessor of land has no duty to remedy purely natural conditions on his land, even if they are dangerous to his neighbors, the CA notes that the reason for the rule has little viability in contemporary urban settings.

"We believe that the time has come for us to recognize the common-sense duty of reasonable care that a landowner owes to his neighbor. … Accordingly, we now take the step we foreshadowed 21 years ago in Schwalbach, and hold 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."

Digested, J. Hamlett

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