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Road Management & Engineering Journal
Copyright © 1997 by TranSafety, Inc.
July 20, 1997
TranSafety, Inc.
(360) 683-6276
Fax: (360) 335-6402

Study Shows Problem of Vehicle-Wildlife Collisions Increasing
Over-Application of Pavement Crack Seal May Be a Hazard to Motorcyclists
Legal Problems: The Liabilities of Roadside Maintenance
Utility Company Must Keep Stored Poles Outside Roadside "Clear Recovery Area"

Legal Problems: The Liabilities of Roadside Maintenance

The National Cooperative Highway Research Program (NCHRP) prepared a report under Project 20-6, "Legal Problems Arising Out of Highway Programs." The following is a brief summary of a supplement and update to the part of that report entitled "Liability of the State for Injury or Damage Occurring in Motor Vehicle Accident Caused by Trees, Shrubbery, or Other Vegetative Obstruction Located in Right-of-Way or Growing on Adjacent Private Property. The original report was prepared by John C. Vance. All of these papers are part of Selected Studies in Highway Law (SSHL) published by the Transportation Research Board.

State and local governments are increasingly looking for ways to minimize their liability when personal injury or damage to personal property occurs as a result of a highway accident. Since highway officials find themselves responsible for providing safe, well- maintained roads for vehicular travel, the cases reviewed and the guidelines furnished in this supplement should be helpful in determining how courts are likely to interpret governmental responsibility in this area. The information contained here should be helpful to right-of-way officers, risk managers, design and maintenance engineers, safety officers, and attorneys responsible for tort matters.

Established Principles Regarding "Duty"

Any liability cases that have been decided since the original highway law paper was written revealed little departure in the way the rules and principles were set up initially. These are well-established principles relating to the duty owed by the State and its subordinate units to the motoring public. (See Figure 1.)

  • The State and other governmental units do not stand in the capacity of insurer of the safety of the roads.

  • Duty is limited to that of maintaining the roadway systems in a condition reasonably safe for public travel by motorists who are themselves exercising ordinary care.

  • In an action against the State, or other governmental entities, to recover for death, injury, or property damage caused by a defect lying in, along, above or adjacent to the paved surface or the shoulder or berm of the roadway, it is necessary to establish that the defect was the proximate cause of the accident, and as a necessary corollary, that the sequential chain of events leading to the accident was not broken by an efficient, intervening, or independent cause.

  • As a further condition precedent to recovery it is necessary to establish that the State or subordinate governmental agency had either actual or constructive notice of the defect and at the same time was accorded a reasonable opportunity to take remedial action with respect thereto.
FIGURE 1:   State and Local Government Principles of Duty

Recent Court Determinations

This supplemental paper contained the cases which had been recorded since the original paper was written and breaks them down according to the particular type of property (trees, shrubbery, vegetation) and the location of the property involved. Several of these cases are outlined below.

Standing Trees

Within the Right-of-Way

There are many cases where trees left standing in the right-of-way resulted in injury to motorists who strayed from the paved roadway. In most of these cases, liability is a question left to the jury which must consider the totality of the circumstances to determine what constitutes neglect on the part of the state or its subdivisions. One very important consideration is whether or not there have been prior crashes involving the same tree or line of trees. Such situations would present actual or constructive notice of a condition hazardous to the motoring public. Two cases where wrongful death actions were filed because motorists struck trees within the right-of-way disclosed similar findings. Chalk v. State, 147 A.D.2d 810, 537 N.Y.S.2d.685 (1989), and Luceri v. County of Orange, 144 A.D.2d. 444, 534 N.Y.S.2d. 9 (1988) both dealt with motorists who made avoidance maneuvers causing the driver in each case to leave the paved surface of the road and collide with a tree. In each case, the tree that was struck was located approximately six feet from the road on which each driver was traveling.

In both cases the plaintiffs failed to establish negligence on the part of the defendants. In Chalk, the evidence disclosed that construction plans provided that any trees five feet or more from the edge of the finished pavement should be saved, if possible. The Appellate Court held that the decision of the highway departments to leave the trees standing conformed to proper and acceptable engineering plans. The absence of any prior crashes at the same location further absolved the State from negligence.

In Luceri, the Appellate Court determined that there was absent any fact showing that the County was in any way negligent and that negligence was the proximate cause of the decedent's crash,or that the County was given notice of this dangerous condition and failed to remedy it. Leaving the tree a six-foot distance from the road surface did not constitute negligence, especially in light of the fact that there was no actual or constructive notice to the County of any hazardous condition to the motoring public. While the County has a duty to trim trees where branches and limbs could fall upon vehicles along the traveled portion of the road, the County is not an insurer of those injured on its roads.

Another case, Tinao v. City of New York, 112 A.D.2d. 363, 491 N.Y.S.2d. 814 (1985), recognized that even though a government entity may have been negligent in the maintenance of a roadway, there still must be evidence proving that particular negligence was the proximate cause of the injury suffered. Tinao was a wrongful death action where a motorist was killed when his vehicle left the pavement surface and struck a tree in the shoulder of the road. The driver had been drinking and driving too fast, and such actions were determined to be the proximate cause of the accident and not the existence of flooding and a dangerous crack in the roadway.

Outside the Right-of-Way

The fact that a tree stands outside the right-of-way does not in and of itself relieve the State or other responsible governmental agency of common law liability. However liability may turn on the provisions of statute law, as shown in the differences of two specific cases: Carney v. Department of Transportation, 145 Mich. App. 690, 378 N.W.2d. 574 (1985) and Peterson v. Department of Transportation, 154 Mich.App. 790, 399 N.W.2d 414 (1986).

The plaintiff in Carney was injured when the vehicle she was driving veered off the paved roadway, plunged down a steep embankment, and struck a large tree outside the right-of-way. Michigan was charged with failing to remove or guard against the tree in question, thus breaching a statute that imposes a limited duty on Michigan DOT to keep "the improved portion of the highway designed for vehicular travel" in a state of "reasonable repair."

In this case the court held that there had been no breach of duty. The tree was not within reach of the vehicle--even with all four wheels on the shoulder. The allegations of negligence which are based solely on defendant's failure to remove or guard the tree do not constitute a viable claim. The court further contended that the country road is lined by numerous trees and other vegetation. Keeping a road in reasonable repair does not include deforestation of the surrounding countryside. The statute, therefore, relieves the State of any duty to guard against, by removal, barriers, signing, otherwise, a tree located outside the right-of-way limits.

Again, the duty rests on the plaintiff to prove through evidence that the government had actual or constructive notice of the defect in the roadway. If that had been the situation with Carney, the State may have been held liable even though the tree was located outside the right-of-way. Such were the circumstances evidenced in Peterson, where a motorist was seriously injured when the vehicle she was driving went out of control after the wheels slipped over a 2.5-inch dropoff between the paved surface and the shoulder of the road and struck a tree located outside the right-of-way limits. In this case the State was held liable--not because of the proximity of the tree but because the State failed to repair the hazardous dropoff.

Fallen Trees

Bordering the Traveled Way

The fall of large trees or limbs on or into the path of vehicles poses a serious danger to motorists. It is widely recognized by the courts that highway departments have a duty to inspect trees bordering traveled ways to identify trees that are in weakened condition and susceptible to falling. In order for a State or subordinate agency to be held liable for personal injuries resulting from such accidents, it is necessary to show that the government had actual or constructive knowledge of the diseased condition of the tree.

Within the Right-of-Way

Some states satisfy their duty of reasonable care by conducting drive-by inspections by qualified personnel. If a diseased condition is noted by observers, the State has the duty to take remedial action, whether the tree stands within the-right of-way or on private land adjacent to the right-of-way.

In the case of McGinn v. City of Omaha, 217 Neb. 579, 352 N.W.2d 545 (1985), the Supreme Court examined whether or not a drive-by inspection satisfied the State's requirements of due care. In this case a tree, located in the right-of-way, fell upon an automobile that was traveling on a street owned and maintained by the defendant City of Omaha. Judgment was rendered for the plaintiff at trial, although the tree fell during a severe storm and there was no previous knowledge that the tree was badly decayed on the inside. The City appealed.

Upon appeal, the plaintiff could not prove that the City had failed to inspect the tree or that visible signs of decay were apparent prior to the tree's fall. In fact, uncontroverted evidence showed that the City of Omaha had instituted an inspection program to detect and remove hazardous trees from the city streets. An expert from the University of Massachusetts testified that few cities had such an inspection program, and Omaha's was one of the best he had seen. The Court ruled that for practical purposes an inspector must rely upon external indications when inspecting a tree for decay. This case squarely supported the case law set forth in the original paper that drive-by inspections by trained observers do satisfy the requirements of due care.

In several other cases, the variables of each case influenced the court rulings. In one case in South Carolina, Marsh v. South Carolina Department of Highways and Public Transportation, 380 S.E.2d. 867 (S.C. 1989), a tree standing in close proximity to the highway had been leaning toward the highway for four years and was noticeable to anyone traveling that roadway. The day before a crash where the tree fell onto a truck, the tree had been leaning at a 60- or 70-degree angle. Road crews had made no effort to remove the tree--although its diseased trunk was clearly evident even to a non- expert. The court determined that the State did not exercise reasonable care and found for the truck driver.

Another case in Connecticut, Roman v. City of Stamford, 16 Conn. App. 213, 547 A.2d 97 (1988), applied public versus private duty distinction when a vehicle was struck by a rotted falling pine tree. In this case a City charter provision directed the City's park commission to provide for the care and control of all trees within the limits of public roads. Both the trial court and the Supreme Court reached the conclusion that a municipality cannot be held liable for negligence if a city charter provision directs the city's park commission to provide for the care and control of all trees within the limits of public roads. (The public duty-private duty dichotomy admittedly is a complex matter. For a more detailed discussion of this subject see "The Public Duty Defense to Tort Liability," appearing in Selected Studies in Highway Law, Vol.4, at p.1868-N1.)

Outside the Right-of-Way Limits

As a general rule, it is the responsibility of the State and its subordinate agencies to inspect trees located outside the right-of-way but within falling distance of the roadway. But, as discussed previously in McGinn, duty lies in removing trees that pose imminent danger. As the Appellate Court determined, it would be an impossible task to carefully inspect every tree on property adjacent to the highway right-of-way. In one Louisiana case, Walker v. Department of Transportation & Development (DOTD), 460 So.2d 1132 (La.App.1985), a wrongful death action resulted when a car collided with a 70-year-old tree that was uprooted during a severe ice storm and fell from outside the right-of-way to a position across the paved surface of the roadway. The DOTD could not be charged with constructive knowledge of a buried root defect, and the appellant could give no evidence to establish that the DOTD had either actual or constructive notice of possible root defect in the tree concerned.

Overhanging Limbs and Roadside Vegetation

Trimming Limbs

It would seem obvious that the State and its agencies would be responsible for trimming limbs that overhang onto the public way at heights that are in the path of moving vehicles. When a wrongful death action was brought against a town in Massachusetts because a motorcyclist was killed when his head struck an overhanging limb, the town contended that pruning was a discretionary function of the Massachusetts Tort Claims Act. In Sanker v. Town of Orleans, 27 Mass. App. Ct. 410, 538 N.E.2d 999 (1989), the court rejected the Town's contention on the grounds that the decision was not a "planning activity protected by the discretionary function exception" and found that day-to-day care and maintenance of a public road seems at the opposite end from policy and planning. It ruled that municipal negligence in such a respect is not sheltered as a discretionary function.

But recovery from this type of negligence can also be denied when there is contributory negligence as determined in McMillen Transfer Inc. v. State, 225 Neb. 109, 402 N.W.2d 878 (1987). In this case, both the trial court and the Supreme Court reiterated that the circumstances of individual cases determine what is reasonable care and what is breach of duty. Such was the situation in McMillen, when the courts found that the driver's prior knowledge of the highway, the tree limbs, and the trees lining the highway and his decision to proceed along that highway close to the trees when there was sufficient room in the main portion of the highway constituted negligence on his part and denied him recovery.

Vegetative Growth

The duty to cut or remove vegetative growth has also been the focus of many law suits. It is generally held that the State and subordinate agencies are under a common law duty to cut or remove vegetation in order to restore or maintain highway visibility, or, in the alternative, they have a duty to post adequate warning signs. As shown in the original paper, their duty has been held to extend to obstructive vegetative growth on adjacent private property, a duty being imposed to enter upon such property by whatever legal means are necessary in order to take steps for the control or removal of the hazard. (See Sanchez v. Clark County, 44 Ohio App. 3d 97,541 N.E. 2d 471. 1988.) There is conflicting opinion on this matter.

In Havens v. Harris TP, (530 N.E.2d 284 Ill.App. 3 Dist. 1988), the plaintiff sustained injuries from roadside vegetation when his minibike collided with a truck on a country road. The Appellate Court affirmed the action of the lower court that there was no common law duty owed by the Township to cut or remove the vegetation and that such a duty could only arise if an improvement were made to the road in question. It is noteworthy that the view taken in Havens (that is, that the duty in question is discretionary in nature) has not found general support, including those cases dealing with the discretionary function exception of State Tort Claims Acts, wherein such position has been advanced and rejected. ( See Sanker cited above and Hamric v. Kansas City Southern Railway Company, 718 S.W.2d. 916 Tex. App. 1986.)

In a minority of cases, however, the courts have taken the position, on public policy grounds, that to expose smaller units of government, such as counties and municipalities, to liability for failure to control vegetative growth at hundreds, or thousands, of road intersections within their jurisdictions, would cause an undue financial burden and hardship, and, therefore no common law duty exits to cut or remove such obscurant vegetation. (See Toumber v. Haas, 236 Kan. 138, 689 P.2d 808. 1984).

Finally, this supplemental report concluded that new matter in these recent cases was largely confined to use of the public duty concept. According to the author, the public duty defense had been underused in highway cases. Valuable instruction in the use of the public duty defense can be found in the paper by Kenneth G. Nellis, entitled "The Public Duty Defense to Tort Liability," appearing in Selected Studies in Highway Law, Vol. 4, at p. 1868-N1.

Copyright © 1997 by TranSafety, Inc.

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