Present: All the Justices
MATTHEW W. CLINE
OPINION BY
v. Record No. 110650 JUSTICE S. BERNARD GOODWYN
June 7, 2012
DUNLORA SOUTH, LLC
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge Designate
In this appeal, we consider whether the common law tort
principles of this Commonwealth allow for the recovery of
personal injury damages sustained due to a tree falling from
private land onto a vehicle traveling on a public highway.
Background
On February 12, 2010, Matthew W. Cline (Cline) filed an
action in the Circuit Court of Albemarle County against Dunlora
South, LLC (Dunlora) and other entities for injuries he
sustained when a tree fell on his vehicle as he was driving on
a public highway. The defendants filed demurrers, and
following briefing, the circuit court heard oral argument. At
argument, Cline verbally requested and was granted a nonsuit on
his claims against all defendants except Dunlora. The circuit
court sustained Dunlora’s demurrer, and it granted Cline leave
to amend his complaint.
Cline filed an amended complaint alleging negligence and
that Dunlora’s conduct constituted a nuisance because
“Dunlora’s lack of care, inspection, servicing, and/or
maintenance of the subject property and tree was a condition
that imperiled the safety of the public highway immediately
adjacent to the property and tree, creating a danger and hazard
to motorists and/or pedestrians.” Dunlora filed a demurrer.
After reviewing briefs, the circuit court sustained the
demurrer, without leave to amend. Cline appeals.
Facts
The relevant facts are those alleged in Cline’s amended
complaint. Cline was driving on Rio Road East near its
intersection with Pen Park Drive when a tree fell and crushed
the roof, windshield and hood of the vehicle Cline was driving.
Cline suffered severe and permanent injuries, including
fractures of his cervical spine.
The tree was located approximately 15.6 feet from the edge
of Rio Road East, on property “owned and/or controlled,
inspected, maintained and/or serviced” by Dunlora. At the time
of the incident, Rio Road East experienced traffic at a volume
of 25,000 vehicles per day. The tree, approximately 25 inches
in diameter, was “dying, dead, and/or rotten” at the time it
fell, and had been in this condition for a period of “many
years and exhibited visible signs of decay, which were open,
visible and/or obvious,” and “[t]he tree’s dead or decaying
condition was or should have been known by Defendant Dunlora.”
Also, “Dunlora knew or should have known of the hazards
2
presented by the dead, dying and/or rotten tree adjacent to the
public highway.”
Analysis
Cline argues that the circuit court erred in ruling that
landowners in Virginia are not liable for personal injuries
caused by trees that pose an imminent danger or cause actual
harm to persons using an adjoining highway. He claims that
this Court’s opinion in Fancher v. Fagella, 274 Va. 549, 650
S.E.2d 519 (2007), determined that a landowner is liable for
reasonably foreseeable property damage caused by trees located
on adjacent property, and that the authorities relied upon by
this Court in Fancher allow a claim under the facts alleged in
Cline’s amended complaint. Furthermore, he asserts that
traditional principles of Virginia tort law support a claim as
alleged in the amended complaint. 1
Dunlora counters that this Court’s ruling in Fancher does
not allow a cause of action for personal injuries arising from
a tree falling on a public highway. It asserts that imposition
of a duty on an owner of lands adjacent to a public highway to
examine bordering trees would be unreasonable. It also claims
that it is the responsibility of VDOT to protect travelers on
1
Cline’s nuisance claim is based upon Dunlora’s alleged
conduct, and stands or falls on whether Dunlora’s alleged
conduct was negligent.
3
public roadways from injuries caused by dangerous
instrumentalities immediately adjacent to a roadway.
The legal question presented by a circuit court’s decision
to sustain a demurrer requires application of a de novo
standard of review. E.g., Glazebrook v. Board of Supervisors,
266 Va. 550, 554, 587 S.E.2d 589, 591 (2003). In conducting
this review, this Court accepts as true the factual allegations
of the complaint, its attachments, and the reasonable
inferences that follow, but not the pleader’s legal
conclusions. E.g., Yuzefovsky v. St. John’s Wood Apts., 261
Va. 97, 102, 540 S.E.2d 134, 136-37 (2001). Evaluating
allegations of negligence, this Court determines whether the
factual allegations are sufficient to establish a duty of care.
Id. at 106, 540 S.E.2d at 139. “Whether such duty exists is ‘a
pure question of law.’ ” Id. (quoting Burns v. Johnson, 250
Va. 41, 45, 458 S.E.2d 448, 451 (1995)).
At common law, a landowner owed no duty to those outside
the land with respect to natural conditions existing on the
land, regardless of their dangerous condition. See, e.g.,
Driggers v. Locke, 913 S.W.2d 269, 271-72 (Ark. 1996); Giles v.
Walker, [1890] 24 Q.B.D. 656 (Eng.); W. Page Keeton, et al.,
Prosser & Keeton on Torts 390 (5th ed. 1984).
[T]he courts in Virginia operate under a statutory
mandate which provides that the common law of England,
if not repugnant to the principles of the Bill of
4
Rights or the Virginia Constitution, continues in full
force and effect within the State, and shall “be the
rule of decision, except as altered by the General
Assembly,” Code § [1-200]. But this does not mean
that common law rules are forever chiseled in stone,
never changing. The common law is dynamic, evolves to
meet developing societal problems, and is adaptable to
society’s requirements at the time of its application
by the Court.
Williamson v. Old Brogue, Inc., 232 Va. 350, 353, 350 S.E.2d
621, 623 (1986).
This Court has never recognized that principles of
ordinary negligence apply to natural conditions on land, but in
Smith v. Holt, 174 Va. 213, 219, 5 S.E.2d 492, 495 (1939), we
determined that an adjoining landowner had a nuisance cause of
action if a sensible injury was inflicted by the protrusion of
roots from a noxious tree or plant on the property of an
adjoining landowner. The Court also eschewed the English
common law distinction between natural and cultivated
vegetation. 2 See id. at 214, 216-17, 5 S.E.2d at 493, 494.
The duty recognized by this Court in Smith is in accord
with the broad common law maxim: “sic utere tuo ut alienum non
laedas” – one must so use his own rights as not to infringe
upon the rights of another. See, e.g., Burwell v. Hobson, 53
Va. (12 Gratt.) 322, 325 (1855). The principle of sic utere
2
See Restatement (Second) of Torts §§ 839, 840
(recognizing a duty to control vegetation encroaching upon
adjoining land only if such vegetation is “artificial” –
planted or maintained).
5
precludes use of land so as to injure the property of another.
See, e.g., Smith, 174 Va. at 215-18, 5 S.E.2d at 493-95 (citing
with approval Mississippi court’s use of that principle as
rationale for what was adopted as the “Virginia Rule”),
overruled on other grounds by Fancher, 274 Va. at 555-56, 650
S.E.2d at 522; Raleigh Court Corp. v. Faucett, 140 Va. 126,
134, 124 S.E. 433, 435 (1924) (discussing the axiom with
respect to surface waters).
In Fancher, the Court reexamined the issue of injury
caused by the encroachment of vegetation onto adjoining
property, and modified the “Virginia rule” expressed in Smith
in two ways: (1) discarding the subjective requirement of
“noxious” nature, and (2) imposing a limited duty on owners of
adjoining residential lots to protect against actual or
imminent injury to property caused by intruding branches and
roots. 274 Va. at 555-56, 650 S.E.2d at 522.
Fancher concerned a sweet gum tree that was allegedly
causing structural damage to an adjacent townhome property
through its root system and overhanging branches. 274 Va. at
552, 650 S.E.2d at 520. Upon considering the approaches of
various other jurisdictions to determine whether a nuisance
exists and a right of action arises when vegetation encroaches
across property lines, as well as the “Virginia Rule” stated in
6
Smith, we adopted the Hawaii approach, 3 as expressed by the
Supreme Court of Tennessee: “ ‘[E]ncroaching trees and plants
may be regarded as a nuisance when they cause actual harm or
pose an imminent danger of actual harm to adjoining
property.’ ” Id. at 556, 650 S.E.2d at 522 (quoting Lane v.
W.J. Curry & Sons, 92 S.W.3d 355, 364 (Tenn. 2002)).
In Fancher, this Court articulated a rule allowing relief
where trees encroaching onto the land of another constitute a
nuisance, and held that trees encroaching upon the property of
another are a nuisance where they cause actual harm or the
imminent danger of actual harm. 274 Va. at 555-56, 650 S.E.2d
at 522. Fancher therefore recognized that a trial court must
determine whether circumstances are sufficient to “impose a
duty on the owner of a tree to protect a neighbor's land from
damage caused by its intruding branches and roots.” Id. at
556-57, 650 S.E.2d at 523. 4
Cline asserts that the principles stated in Fancher,
logically extended, dictate finding the existence of a duty in
this case. We disagree. The rule expressed in Fancher,
3
This Court overruled the “Virginia Rule” stated in Smith
v. Holt, “insofar as it condition[ed] a right of action upon
the ‘noxious’ nature of a plant that sends forth invading roots
or branches into a neighbor’s property.” Fancher, 274 Va. at
555, 650 S.E.2d at 522.
4
Even in Smith, this Court recognized such a duty, albeit
limited to “noxious” plants. 174 Va. at 219, 5 S.E.2d at 495.
7
allowing imposition of a duty on the owner of a tree to protect
a neighbor’s land from damage caused by the tree, addresses a
narrow category of actions arising from nuisance caused by the
encroachment of vegetation onto adjoining improved lands. 5 See
id. The duties imposed in Fancher and Smith are dramatically
different than duties necessary to support an action for
personal injury predicated upon a duty of a landowner regarding
the natural decline of trees on his or her property, which is
adjacent to a roadway. The Fancher line of precedent does not
support a duty on the part of a landowner to inspect and cut
down sickly trees that have the possibility of falling on a
public roadway and inflicting injury. Thus, Fancher does not
support finding a cause of action in the instant matter, where
the alleged injuries arose from an allegedly dead or decaying
tree falling from private land onto a vehicle traveling on a
public highway.
In the case of Price v. Travis, 149 Va. 536, 140 S.E. 644
(1927), this Court stated:
It is well settled that public highways, whether they
be in the country or in the city, belong, not
partially but entirely, to the public at large, and
5
In Fancher, we expressly stated that “[i]t would be
clearly unreasonable to impose [a duty to protect a neighbor's
land from damage caused by intruding tree branches and roots]
upon the owner of historically forested or agricultural land,
but entirely appropriate to do so in the case of parties, like
those in the present case, who dwell on adjoining residential
lots.” 274 Va. at 557, 650 S.E.2d at 523.
8
that the supreme control over them is in the
legislature. This plenary power over the streets to a
certain extent is conferred by the legislature of the
State upon the cities and towns thereof.
. . . .
Any part of the highway may be used by the
traveler, and in such direction as may suit his
convenience or taste. No private person has a right
to place any obstruction which interferes with this
right on any part of the highway within its exterior
limits. . . . The duty of the [public entity that
maintains the highway] is to perform a positive act in
the preparation and preservation of a sufficient
traveled way. The duty of others is to abstain from
doing any act by which any part of the highway would
become more dangerous to the traveler than in a state
of nature, or than in the state in which the [public
entity that maintains the highway] has left it.
Id. at 541-42, 140 S.E. at 646 (citations and internal
quotation marks omitted). 6
The duty owed by adjoining property owners is to refrain
from engaging in any act that makes the highway more dangerous
than in a state of nature or in the state in which it has been
left. Id. There were no allegations in the amended complaint
to suggest that Dunlora engaged in any affirmative act that
caused the property adjoining the highway to be different than
in its natural state or different from the condition in which
it was left when the road was built. The allegations of the
6
The General Assembly has vested the Commissioner of
Highways with the power to do all acts necessary for
maintaining and preserving state roads. See Code § 33.1-13.
The duty of VDOT or any other entity responsible for
9
amended complaint are stated in terms of a failure to act, and
the issue is whether there is a duty requiring a landowner to
act.
In discerning whether common law tort principles of this
Commonwealth impose a duty upon landowners to protect
individuals traveling on an adjoining public highway from
natural conditions on the landowner’s property, we note that no
such duty existed under relevant English common law. Also,
this Court has never recognized, nor do our precedents support,
a ruling that a landowner owes a duty to protect travelers on
an adjoining public roadway from natural conditions on his or
her land. Thus, the circuit court did not err.
Conclusion
Accordingly, for the reasons stated, we will affirm the
judgment of the circuit court and enter final judgment.
Affirmed and final judgment.
JUSTICE LEMONS, with whom JUSTICE MIMS and JUSTICE POWELL
join, dissenting.
Well known and ordinary principles of negligence should
control this case.
In Smith v. Holt, 174 Va. 213, 219, 5 S.E.2d 492, 495
(1939), we held that an adjoining landowner had a cause of
maintaining the safety of the roadway presents a question not
now before us.
10
action if a sensible injury was inflicted by the protrusion of
roots from a noxious tree or plant on the property of an
adjoining landowner.
In Fancher v. Fagella, 274 Va. 549, 650 S.E.2d 519 (2007),
we reexamined the issue of injury caused by the encroachment of
vegetation onto adjoining property. Fancher concerned a
situation involving a sweet gum tree that allegedly caused
structural damage to an adjacent townhome property through its
root system and overhanging branches. 274 Va. at 552, 650
S.E.2d at 520. Upon considering the approaches of various
other jurisdictions to determine whether a nuisance exists and
a right of action arises when vegetation encroaches across
property lines, as well as the "Virginia Rule" stated in Smith
v. Holt, 174 Va. at 219-20, 5 S.E.2d at 495, we adopted what is
called "the Hawaii approach." 1 The Supreme Court of Tennessee
has explained this approach as follows: " '[E]ncroaching trees
and plants may be regarded as a nuisance when they cause actual
harm or pose an imminent danger of actual harm to adjoining
property.' " Francher, 274 Va. at 556, 650 S.E.2d at 522
(quoting Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 364 (Tenn.
2002)).
1
We overruled the "Virginia Rule" stated in Smith v. Holt,
"insofar as it condition[ed] a right of action upon the
'noxious' nature of a plant that sends forth invading roots or
11
In Fancher, we articulated a rule allowing relief where
trees encroaching onto the land of another constitute a
nuisance, and we held that trees encroaching upon the property
of another are a nuisance where they cause actual harm or the
imminent danger of actual harm. 274 Va. at 555-56, 650 S.E.2d
at 522. Fancher therefore recognized that a trial court must
determine whether circumstances are sufficient to "impose a
duty on the owner of a tree to protect a neighbor's land from
damage caused by its intruding branches and roots." Id. at
556-57, 650 S.E.2d at 523. 2
The duty recognized by this Court in Fancher is in accord
with the broad common law maxim: "sic utere tuo ut alienum non
laedas" — one must so use his own rights as not to infringe
upon the rights of another. See, e.g., Burwell v. Hobson, 53
Va. (12 Gratt.) 322, 325 (1855). The principle of sic utere
precludes negligent use of land so as to injure the property of
another. See, e.g., Smith, 174 Va. at 215-18, 5 S.E.2d at 493-
95 (citing with approval Mississippi court's use of that
principle as rationale for what was adopted as the "Virginia
Rule"), overruled on other grounds by Fancher, 274 Va. at 555-
56, 650 S.E.2d at 522; Raleigh Court Corp. v. Faucett, 140 Va.
branches into a neighbor’s property." Fancher, 274 Va. at 555,
650 S.E.2d at 522.
2
Even in Smith, this Court recognized such a duty, albeit
limited to "noxious" plants. 174 Va. at 219, 5 S.E.2d at 495.
12
126, 134, 124 S.E. 433, 435 (1924) (discussing the axiom with
respect to surface waters).
Considering Virginia precedent and applying the common law
principle of sic utere to the question of first impression
presented in this matter, we should recognize that principles
of ordinary negligence apply to natural conditions on land.
The Restatement has provided guidance to various courts
examining the not entirely unusual situation giving rise to the
case before us.
The Restatement articulates limited exceptions to the non-
liability rules governing natural conditions:
A possessor of land in an urban area is subject to
liability to persons using a public highway for
physical harm resulting from his failure to exercise
reasonable care to prevent an unreasonable risk of
harm arising from the condition of trees on the land
near the highway.
Restatement Second of Torts § 363(2). Correspondingly,
[a] possessor of land who knows or has reason to know
that a public nuisance caused by natural conditions
exists on his land near a public highway, is subject
to liability for failure to exercise reasonable care
to prevent an unreasonable risk of harm to persons
using the highway.
Id. § 840(2). 3 The Restatement expresses this imposition
of liability "with a caveat for trees in rural areas"
however. Id. § 840(2) cmt. c. Thus, in rural areas,
3
As stated above, these sections abrogate the common law
rule, which declined to impose landowner liability. "[A]
13
[t]here is no duty to inspect for the purpose of
discovering a dangerous natural condition. But if the
possessor knows of the condition or has reason to
know of it . . . , he does have a duty to act
reasonably in regard to its removal. It is in
connection with the reason to know of the condition
that the distinction between urban and rural areas
becomes significant. The size and condition of the
possessor's tract of land, the nature of the highway
and whether the possessor lives on the land or
frequently travels the highway are all pertinent to
the decision; and an arbitrary distinction between
urban and rural property becomes meaningless and
unjustified, especially when many "rural" areas are
extensively populated.
Id.
Despite the influence of the Restatement, across the
jurisdictions addressing the liability of landowners resulting
from trees falling on public highways, multiple approaches have
developed. See, e.g., Hensley v. Montgomery Cnty., 334 A.2d
542, 545 (Md. Ct. Spec. App. 1975); Gibson v. Hunsberger, 428
S.E.2d 489, 491-92 (N.C. Ct. App. 1993).
A number of jurisdictions have adopted a rule governed by
the urban/rural distinction, holding that in a rural area,
there is no duty to inspect trees in a state of nature, as such
a duty would prove too onerous for the owners of large,
unimproved tracts of rural land abutting public highways. See,
e.g., Chambers v. Whelen, 44 F.2d 340, 341 (4th Cir. 1930)
(applying West Virginia law); Lemon v. Edwards, 344 S.W.2d 822,
possessor of land is not liable to persons outside the land for
a nuisance resulting solely from a natural condition of the
14
823 (Ky. 1961); Zacharias v. Nesbitt, 185 N.W. 295, 296 (Minn.
1921); Ford v. South Carolina Dep’t of Transp., 492 S.E.2d 811,
814 (S.C. Ct. App. 1997).
An alternative, referenced in the Restatement comments, to
the strict urban/suburban dichotomy is a blended inquiry,
examining the size, type and use of the highway and land to
determine the proper liability standard – whether there is a
duty to inspect. See, e.g., Miles v. Christensen, 724 N.E.2d
643, 646-47 (Ind. Ct. App. 2000) (rejecting use of the
urban/rural categorization in resolving the duty owed);
Hensley, 334 A.2d at 546-47; Taylor v. Olsen, 578 P.2d 779, 782
(Or. 1978); Lewis v. Krussell, 2 P.3d 486, 491 (Wash. Ct. App.
2000). These cases are contrasted with Brandywine Hundred
Realty Co. v. Cotillo, 55 F.2d 231, 231 (3d Cir. 1931), which
imposes a duty to inspect suburban forests and urban forests
alike, and Medeiros v. Honomu Sugar Co., 21 Haw. 155, 158-59
(1912), which imposes a general duty to inspect trees adjacent
to public highways.
Another option is simple application of ordinary
negligence principles, imposing a duty of reasonable care upon
all landowners, but absent a duty to inspect trees. See
Gibson, 428 S.E.2d at 491 ("There is no duty to inspect for the
purpose of discovering a dangerous natural condition. But if
land." Restatement (Second) of Torts § 840(1).
15
the possessor knows of the condition or has reason to know of
it . . . , he does have a duty to act reasonably in regard to
its removal.") (quoting Restatement (Second) of Torts § 840(2),
cmt. c). 4 Many jurisdictions, regardless of whether they impose
a duty to inspect in various circumstances, require the
presence of patent visible decay for the imposition of
liability, a condition that tends towards imposition of a
uniform duty to exercise reasonable care. See, e.g., Willis v.
Maloof, 361 S.E.2d 512, 513 (Ga. Ct. App. 1987) ("The owner of
a tree is liable for injuries . . . only if he knew or
reasonably should have known the tree was diseased, decayed or
otherwise constituted a dangerous condition."); 5 Pulgarin v.
Demonteverde, 880 N.Y.S.2d 571, 571 (N.Y. App. Div. 2009) ("In
cases involving fallen trees, a property owner will be held
liable only if he or she knew or should have known of the
4
Although Gibson cites section 363(2) of the Restatement,
the rule expressed by the court does not draw an urban/suburban
distinction. Id. at 492; see also Wallen v. Riverside Sports
Ctr., 618 S.E.2d 858, 861 (N.C. Ct. App. 2005) ("Increasingly,
the courts of various states have moved away from the rigid
urban-rural analysis towards imposing a duty of reasonable care
upon a landowner based on the attendant circumstances. . . . In
Gibson v. Hunsberger, this Court adopted this approach in a
case involving a tree falling on a highway, in what was clearly
a rural setting.").
5
Georgia, despite this statement tending towards a
universal duty of reasonable care, has recognized the
urban/rural distinction. See, e.g., Wade v. Howard, 499 S.E.2d
652, 654-55 (Ga. Ct. App. 1998).
16
dangerous condition of the tree . . . .") (citing Ivancic v.
Olmstead, 488 N.E.2d 72, 73 (N.Y. 1985)).
Considering the various approaches to liability arising
from trees adjacent to roadways in concert with the
longstanding negligence principles articulated above, we should
recognize a general duty of reasonable care applicable in all
such cases. We should decline to impose a duty to inspect
trees for defects, and we should adopt the following rule:
[A] landowner has a duty to exercise reasonable care
regarding natural conditions on his land which lies
adjacent to a public highway in order to prevent harm
to travelers using the highway. A landowner is
subject to liability only if he had actual or
constructive notice of a dangerous natural condition.
Gibson, 428 S.E.2d at 492. Accordingly,
[t]he owner of a tree is liable for injuries . . .
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 . . . ."
Willis, 361 S.E.2d at 513 (quoting Cornett, 237 S.E.2d at 524).
"The alleged defect must be 'readily observable' so that the
landowner can take appropriate measures to abate the threat."
Lewis, 2 P.3d at 491 (quoting Ivancic, 488 N.E.2d at 73).
Realizing it is unreasonable to impose the same
expectations upon the owners of large, rural and historically
agricultural or forested tracts of land as that imposed upon
the owner of a single lot in an unforested urban area, we
17
should adopt the rule that determining whether a landowner had
constructive notice of a dangerous tree is a fact-specific
inquiry, depending upon a variety of factors, including the
character of the land, the nature and frequency of the
landowner's use, the outward appearance of the tree, and
whether persons noticed and notified the owner of the condition
of the tree. See Gibson, 428 S.E.2d at 492 ("[T]here is no
evidence in the record from which constructive notice could be
found. The tree was leaning but this was common in the area
and the tree appeared to be healthy and sound. The tree was
not leaning out over the road. It was not readily observable
that the tree would fall into the road. Not one of the
witnesses who observed the tree prior to its fall thought it
was necessary to report the leaning tree to the Sheriff's
Department or the Department of Transportation.").
Following well established principles governing liability
at common law: a landowner should be liable for injuries
resulting from a tree falling from his or her property onto a
public highway if he or she knows or has reason to know of the
imminent danger presented by the tree's death, decay or other
visible defect. Cline has pled that (1) Dunlora owned the
property upon which the tree was located at the relevant time;
(2) the tree was "dying, dead, and/or rotten" and had been in
this condition "for many years"; (3) the tree exhibited "open,
18
visible and/or obvious" signs of decay; (4) Dunlora "inspected,
serviced and/or maintained the subject tree"; (5) "Dunlora was
on notice or should have been on notice of the subject dead,
dying, or rotten tree"; and (6) Dunlora "knew or should have
known" of the hazard presented by the tree, given its
condition, being adjacent to a busy roadway. Because Cline
pled that the subject tree constituted a sufficiently dangerous
condition to those using the roadway, of which Dunlora had
actual or constructive notice, I would hold that the circuit
court erred in sustaining the demurrer. 6
I respectfully dissent.
6
The duty of VDOT or any other entity responsible for
maintaining the safety of the roadway presents a question not
now before us.
19