TIMBER: A Homeowners Liability for a Defective Tree Within a Governmental Easement
If you are not aware of it, there may be an area of your land that holds a governmental easement. It is used for sidewalks, the placement of signs, utilities or other various reasons. There are different standards that apply to the use of the easement. This article will cover whether a Pennsylvania property owner is liable for a dangerous condition on its property that is caused by a tree that is also within a Penn DOT right of way?
EASEMENTS
Several different types of easements can be created in order to secure a highway right of way. As of 1979, Penn DOT is entitled to take the entire fee interest in land. Previously. It could only take an easement to use the land for roadway purposes. Patricca v. Zoning Bd. of Adjustment, 590 A.2d 744, 748 n.4 (Pa. 1991); EZY Parks v. Larson, 454 A.2d 928, 936 (Pa. 1982). Generally, a right of way is the same as an easement. However, a right of way can constitute either an easement of passage and use or fee in the land; the property agreement will delineate which is intended. Graybill v. Hassel, 74 A.2d 686 (Pa. Super. Ct. 1950).
The property owner retains rights in the right of way if the right of way is an easement of use and passage. Breinig v. County of Allegheny, 2 A.2d 842 (Pa. 1938). In fact, the retained rights and duties are substantial. Contrary to a general impression, when land has been taken for public use as a highway, the owner does not surrender his entire title to the land so taken, but reserves the fee in the residue of the highway land and he may, as to such residue, exercise full rights of ownership.
The abutter may erect steps, cellar doors, awnings, projecting windows, cornices, balconies and the like, and may plant shade trees along the highway. He may use the surface of the street temporarily for purposes necessarily incident to the abutting land. Thus he may place building materials or articles for household use thereon for a reasonable length of time. Under the surface of the highway he may build a mill race, tunnel or basement, or he may mine coal therefrom. It is clear that, when the authorities take part of an owner's lot or land for highway purposes, his rights in the residuum of fee are not entirely swept away. Id.; see Ephrata Area Sch. Dist. v. County of Lancaster, 886 A.2d 1169, 1175 (Pa. Commw. Ct. 2005) rev’d on other grounds at 938 A.2d 264 (Pa. 2007) (“In Pennsylvania, the owner of land, who grants a right of way over it, conveys nothing but the rite of passage and reserves all incidents of ownership not granted. Thus, the servient owner retains all rights in the property, subject only to the easement.”).
SUMMARY OF LAW ON WHETHER A PROPERTY OWNER IS LIABLE
The majority of the case law indicates that Penn DOT and the property owner can be jointly liable for dangerous tree conditions within the Penn DOT right of way. Particularly, a common pleas decision from Montgomery County in 1927 directly addresses this issue finding a property owner had a duty to remove a tree within the commonwealth right of way. More recent case law not directly addressing this issue also lends support to the argument that property owners are jointly liable for dangerous tree conditions within Penn DOT’s right of way. The law of easements and right of ways also supports ownership by the property owner within the right of way and to the center line of the roadway. The property owner retains rights and duties with regard to dangerous tree conditions.
Other case law and statutes not directly on point also favor a finding that Penn DOT is solely liable for dangerous tree conditions within its right of way. By statute, Penn DOT has an absolute (although not exclusive) right to trim and remove trees within its right of way. At least one published case involved a dangerous tree condition within Penn DOT’s right of way in which the property owner was not sued. Sidewalk and vegetation cases are distinguishable because both situations involve statutes that define the liability of governmental entities and property owners.
Liability on the landowner will also depend on whether Penn DOT obtained fee in the land within the easement or continued to hold an easement to use the land for highway purposes. That is, the landowner can only be held liable if Penn DOT has an easement to use the property for highway purposes and did not purchase the property within the right of way.
CASES CONTRARY TO HOLDING A PROPERTY OWNER RESPONSIBLE
The only case directly addressing the duty of a property owner to remove a dangerous tree condition from within Penn DOT’s right of way is from the Court of Common Pleas in Montgomery County and the year 1927. Falco v. Bryn Mawr Trust Co., 10 Pa. D. & C. 115 (C.P. Montgomery 1927). In Falco, a large tree limb from a tree growing both within the Commonwealth right of way and on the abutting owner’s property fell in front of the plaintiff’s truck. Id. at 115. The plaintiff was unable to stop, struck the tree, and then sued the property owner for the damage to his vehicle. Id. The Court posed the first issue in the case as: “First of all, is an abutting property owner liable for damages caused by the fall of a tree which stands in front of his land but within the limits of a State highway?” Id. The Court went on to determine that the property owner retained ownership of the property (a point conceded by the owner) and a duty to protect the traveling public from dangerous conditions, although the dangerous tree condition was within the Commonwealth right of way:
The right of ownership of abutting property owners in trees standing in the highway and their responsibility for these trees has been recognized by the courts.…there is no doubt that it is the duty of the highway commissioner to abate nuisances within the boundaries of the highway. But this does not relieve the abutting property owner of his liability for his affirmative act in creating or maintaining a nuisance in front of his property…We are of the opinion that the fact that this was a State highway and that the State had the management and control of the road, with the duty to maintain and repair it, does not relieve the defendant [abutting property owner] from liability for maintaining a nuisance, which the jury found this tree to be, within the limits of the highway. Id. at 116-18 (emphasis added).
The court addressing a motion for new trial and judgment n.o.v. upheld the jury verdict in favor of the plaintiff and against the property owner. Id.
However, 36 P.S. § 670-410 (2013) abrogates the right and duty of a property owner to remove dangerous trees from within Penn DOT’s right of way. However, a plain reading of this statute shows that Penn DOT has an absolute, but not exclusive right to remove trees within its right of way. Id. The law specifically reserves the right of the property owner to remove and trim trees, albeit with Penn Dot’s permission. Id.
…The Department of Transportation shall have the absolute right to trim, cut and remove any trees, grasses, shrubs and vines growing within the legal right of way of any State highway, and to trim and cut away any trees, grasses, shrubs and vines growing on adjacent property in so far as they overhang or encroach upon the legal right of way of any State highway.
It shall be unlawful for any person to cut, trim, remove or otherwise damage any trees, grasses, shrubs or vines growing within the legal right of way of a State highway, which have been planted by any person or agency other than the abutting property owner, without first having obtained the consent of the secretary in writing. Any person who shall cut, trim, remove or otherwise damage such trees, grasses, shrubs or vines without first having obtained such written consent, shall on summary conviction thereof be sentenced to pay a fine of not less than one hundred dollars ($ 100.00) or more than three hundred dollars ($ 300.00) for each act of cutting, trimming, removal or damaging… 36 P.S. § 670-410 (2013) (emphasis added).
The Armstrong Court of Common Pleas directly addressed the non-effect of 36 P.S. § 670-410 on the duty of landowners to remove trees: “This statute clearly gives the Commonwealth a right but creates no duty to trim. Nothing in the statute magically makes the Commonwealth the “owner” of an encroaching tree.” Wynkoop, 67 Pa. D. & C.4th 536, 540 (C.P. Armstrong 2004). The Wynkoop case dealt with liability of Penn DOT and a property owner for a tree defect that originated outside of Penn DOT’s right of way with branches overhanging the right of way. Id. 36 P.S. § 670-410 was addressed in the context of whether this statute gave Penn DOT a duty to trim overhanging branches when the defective portion of a tree fell outside of Penn DOT’s right of way. Id. The Wynkoop Court held that the statute created no such duty for Penn DOT and that the property owner alone was liable when the defective portion of the tree was outside of Penn DOT’s right of way regardless of whether branches overhung the right of way. Id. at 539. In other words, the Wynkoop decision supports the proposition that the statute does not affect the duty of Penn DOT to trim and, therefore, does not affect the duty of Penn DOT to trim either.
The Pennsylvania Superior Court also indirectly addressed this issue in Beury v. Hicks, 323 A.2d 788, 789-90 (Pa. Super. Ct. 1974). The plaintiff, John Beury, was fatally injured when a large tree limb overhanging the highway fell on his vehicle. Id. at 789. Suit was brought against the property owner and the electric company which inspected the trees along the highway for at least 24 years prior to the incident. Id. A jury found both the property owner and electric company liable and the Superior Court affirmed the judgment against the electric company as a gratuitous actor. Id. at 790. The issue of liability against the property owner was not addressed by the Superior Court because the property owners did not appeal the judgment against them. Id. at 789. However, the facts of the case indicate that the defective branch condition overhung the highway and the lower court allowed the issue of liability to proceed to a jury with the jury finding liability against the property owner. Id. Therefore, the court allowed a finding of liability for a defective tree condition that was presumably within the right of way (either Penn DOT or municipality) of the highway.
The Commonwealth Court in Glover v. Penn DOT, 647 A.2d 630, 631 (Pa. Commw. Ct. 1994) allocator denied at 655 A.2d 994 (Pa. 1995), provided further support for this proposition in a different context. In Glover, trees were growing within the right of way were near a bend in the road, obstructed the view of the motorists involved, and caused a collision and fatal injuries to 2 twelve year old boys. Id. at 630-31, n. 4. The Commonwealth Court overturned the jury’s decision finding that driving a vehicle on the wrong side of the roadway was the sole cause of the collision and plaintiffs’ injuries. Id. at 632. Although the issue in this case was an obstruction to site distance around a curve and the Superior Court opinion addressed causation, the decision reveals that the lower court permitted a jury to hold both Penn DOT and the property owner liable for the dangerous tree condition within the Penn DOT right of way. However, a defense counsel for the governmental could argue that vegetation site distance cases are distinguishable because liability against the property owner is statutory. 75 Pa.C.S. 6112 (2013) (effective in 1977 and not amended since that time).
The Superior Court decision of Green v. Freeport, 280 A.2d 412 (Pa. Super. Ct. 1970) lends further support for the proposition that public entities and private property owners can be held jointly liable for dangerous tree conditions within a right of way. In Green, the plaintiff, George Green, was injured as a passenger when the 10 foot high furniture van he occupied was driven into a limb overhanging the road at a height of 7 feet 10 ¾ inches. Id. at 413. A jury found that the Borough of Freeport (local municipality) and Paul and Olga Haggerty (abutting property owners) where both jointly liable for Mr. Green’s injuries despite the tree’s very close proximity to the roadway surface, i.e. between the curb and sidewalk. Id. The Superior Court addressed on appeal whether the lower court’s decision to mold the verdict making the landowner primarily liable with the municipality being secondarily liable on the basis of sidewalk liability rules should be overturned. Id. The Superior Court reversed the lower court’s decision finding that:
Since this injury occurred to a member of the traveling public in the street because of an obstruction to travel, the municipality is liable. Any liability of the abutting property owner for an injury occurring in the street does not rest upon the rule that he must maintain his sidewalk area in a state of reasonable repair or upon any rule of secondary liability; it rests upon the principles of ordinary negligence, namely, his duty to maintain his property in a reasonably safe condition so as not to interfere with the traveling public… Thus, since both the borough and appellants owed a duty to plaintiff and both breached this duty, joint liability results. Id. at 413-14.
The Superior Court went on to find that a local ordinance requiring the landowner to trim trees overhanging the roadway did not delegate liability away from the municipality. Id. at 414. This case dealt with a local municipality and a landowner, it lends strong support for the assertion that a landowner is liable for dangerous tree conditions within a highway right of way because in this case the defective condition of a low hanging branch was actually over the paved portion of the roadway.
The case of Clark v. Penn DOT, 962 A.2d 692, 697 (Pa. Commw. Ct. 2008) also lends indirect support for owner liability within a right of way. The Clark Court affirmed the lower courts determination that the defect in the tree was located outside of Penn DOT’s right of way and that Penn DOT had no duty relative to the same despite the fact that branches were overhanging the roadway. Id. Interestingly for purposes of this memorandum, the Plaintiff sued the township as well as a property owner in addition to Penn DOT. Id. at 693. Evidence was presented that the tree was on the property owner’s property and within the townships right of way and both the township and property owner settled prior to trial. Id. at 694 n.1. Therefore, the fact that these entities settled prior to trial supports joint liability of government entities and property owners for dangerous trees within a right of way.
Finally, Penn DOT regulations give Penn DOT the power to require property owners to remove trees which constitute a traffic hazard:
(b) Trees, plants, shrubs or other obstructions. The Department on State-designated highways, and local authorities on any highway within their boundaries, may require a property owner to remove or trim a tree, plant, shrub or other obstruction or part thereof which constitutes a traffic hazard. 67 Pa. Code § 212.6 (2013) (effective February 4, 2006).
This provision gives Penn DOT and local municipalities the authority to require a landowner to remove a tree that constitutes a traffic hazard. It is arguable that this provision lends further support to the proposition that Penn DOT does not have exclusive control of trees within their right of way and that this provision is an implicit recognition of the landowners duty to remove dangerous trees within the right of way. If the landowner had no duty to remove defective trees than provisions like this would be unnecessary.
CASES CONTRARY TO HOLDING A PROPERTY OWNER RESPONSIBLE
A property owner is likely to argue that the right of way is part of the state highway and under the control of Penn DOT and that Penn DOT has the exclusive duty, therefore, to remove trees within the right of way.
Under Pennsylvania law, state highways are the property of the Commonwealth. The Commonwealth has the exclusive duty for the maintenance and repair of state highways. The duty is not owed by abutting landowners. State Route 501, the road abutting the Carpenters' parking lot, has been designated a state highway by statute. Thus, even though the Carpenters' boundary line extends to the center of State Route 501, the ownership, control and possession of the highway traversing their property, along with the duty of care to maintain the highway, belongs to the Commonwealth. Allen v. Mellinger, 652 A.2d 1326, 1328-29 (Pa. Commw. Ct. 1993) (internal citations omitted) (ultimately holding that a property owner could not be liable for any defect because the collision occurred on the paved portion of the state highway).
The Restatement (Second) of Torts §349 (1965) states similarly:
A possessor of land over which there is a public highway or private right of way is not subject to liability for physical harm caused to travelers upon the highway or persons lawfully using the way by his failure to exercise reasonable care (a) to maintain the highway or way in safe condition for their use, or (b) to warn them of dangerous conditions in the way which, although not created by him, are known to him and which they neither know nor are likely to discover.
Although the language of the Restatement is very restrictive on property owners, the Pennsylvania Superior Court recognized that the Pennsylvania Law imposes duties on landowners abutting public highways contrary to the Restatement Second of Torts 349. Flank v. Phila. Transp. Co., 201 A.2d 225, 228 (Pa. Super. Ct. 1964). The Flank decision regarded the liability of landowners for sidewalk areas which are within the public right of way. Id.
The Commonwealth Court also facially addressed liability of adjacent landowners in Fazio v. Fegley Oil Co., 714 A.2d 510 (Pa. Commw. Ct. 1998) citing Restatement (Second) of Torts §349 and finding that an adjacent owner owes no duty for injuries occurring within a public right of way:
Although Fazio strongly implies in her brief that a landowner's duty with respect to travelers on an adjacent alleyway or public roadway is the same as the duty owed with respect to travelers on an adjacent sidewalk, this proposition is clearly erroneous, as no comparable duty exists with respect to a public roadway. Any analogous duty owed to travelers in this respect is that of the municipal or governmental entity who possesses the public right of way, id., in this case the Borough, whose interests are not now before this Court.
Id. at 12-13 (internal citations omitted). However, the Fazio case is factually distinguishable because it regarded a fall in a public alleyway and runoff from an adjacent property, not a dangerous tree condition. Id. at 511.
The Common Pleas decision of Baclawski v. Levy, 44 Pa. D. & C.2d 367 (C.P. Lackawanna 1968) also facially supports a finding that the property owner has no duty to remove trees within a township right of way. However, the Baclawski Courts holding that the property owner had no duty to remove a dangerous tree was supported by a “peculiar” title situation which abrogated the normal rule that a property owner takes in fee to the middle of the road. Id. at 372. In other words, in Baclawski the township actually owned the fee in the area where the tree was situated, i.e. between the curb and sidewalk. Id.
Further support for sole liability for Penn DOT of dangerous tree conditions within its right of way can be found in Young v. United States, 2002 U.S. Dist. LEXIS 19802 (E.D. Pa. Oct. 15, 2002). The Plaintiff, Mr. Young, rounded a bend in the road and encountered a stopped mail truck. Id. at *1-2. To avoid a collision he swerved into the opposite lane of traffic colliding head on with a cement truck. Id. Young sued Northampton Township and the property owner (Ms. Nolte). Id. at 1-3. Ultimately the Court held that there was a genuine issue of material fact for trial as to whether the property owner had a duty to clear vegetation that contributed to the collision. Id. at 15. The Young Court went on to state that the township was responsible for vegetation within the right of way and the property owner for vegetation outside of the right of way and there was an issue of fact for the jury as to whether which had a duty to clear the vegetation:
Plaintiffs argue that a jury will have to decide whether the vegetation which obstructed Young's view of the mail truck was within Northampton Township's right-of-way, which it maintains, or on Nolte's property, just to the south of the right-of-way. The Court finds that there is a genuine issue of material fact for trial regarding whether Nolte had a duty to clear the vegetation growing on her property on the inside of the curve on Sackettsford Road. Id. at *14-15.
Again, the distinguishing factor here is that vegetation cases are controlled by statutory law which specifically places a duty on the property owner to remove vegetation. 75 Pa.C.S. § 6112.
The Commonwealth Court decision in Hubbarb v. Penn DOT, 660 A.2d 201, 204 (Pa. Commw. Ct. 1995) could also indirectly support the position that Penn DOT retains a duty to maintain the entire right of way when there is no clearly defined curb line. Plaintiff, Naomi Hubbarb, fell and sustained injuries on a defective median strip made of raised concrete in the middle of a state divided highway. Id. at 202. Ms. Hubbard sued both Penn DOT and the City of Philadelphia. Id. The Hubbard Court in addressing the definition of a “curb” also addressed the liability of public entities and landowners for various areas within a right of way:
A curb, as that term is commonly used, is a raised edging serving as a border between that portion of the right-of-way for which a public body has assumed maintenance responsibilities and that portion still retained by the abutting property owner. Public bodies normally assume responsibility for property within the curb lines, i.e., the gutters and the roadway or cart way. On the other hand, the abutting property owner retains responsibility for the conditions outside the curb lines, i.e., the sidewalk, the tree planting strip, and the curb itself. Fisher v. City of Philadelphia, 112 Pa. Super. 226, 170 A. 875 (1934). Absent some deed or dedication requirement, by definition, for there to be a curb, there must be an abutting property owner with maintenance responsibilities. Id. at 204.
Notably, it is also arguable that this decision supports a division of duty and responsibility within the right of way and that the edge of the road or berm in rural areas as the defining line of responsibility. Ultimately, the Court found that Penn DOT was liable because the area where the Plaintiff fell was a median that is part of the cart way and not a sidewalk. Id. at 204-205.
The Supreme Court decision of Commonwealth v. Patton, 686 A.2d 1302, 1303, 1305-06 (Pa. 1997) also supports the Defendants position because the Plaintiff in that matter sued only Penn DOT for a dangerous tree condition within Penn DOT’S right of way. However, the issue of property owner liability is never actually addressed within that opinion. Id.
The Commonwealth Court in Ling v. Commonwealth, 2013 Pa. Commw. LEXIS 388 at *1-2 (Pa. Commw. Ct. 2013) facially supports a finding of dual and co-existent liability between Penn DOT and landowners. The Ling Court cited the Pennsylvania Supreme Court in dicta finding:
…the Commonwealth and landowners both share a duty under the Restatement of Torts not to impair the safety of a highway and that the failure to fulfill this duty results in liability that is "dual and co-existent."
Id. at *10-11, n.8. Examination of the underlying cited case from the Pennsylvania Supreme Court, however, reveals the following quote:
The duty of a municipality or of the Commonwealth itself to provide for the safety of the travelers on a public road is something wholly distinct from the duty of the adjacent landowners not to impair such safety by negligence in the maintenance of their own lands beyond the highway limits where such lands had been artificially changed from their natural state. The liability of the Commonwealth or municipality and the liability of the abutting owners under such circumstances are not mutually exclusive but dual and co-existent.McCarthy v. Ference, 58 A.2d 49, 56 (Pa. 1948) (emphasis added).
Although Ling appears to support an argument of dual and co-existent liability, the underlying Supreme Court authority supports liability for the landowner only beyond the right of way limits. Ultimately, the Ling Court held that a case against Penn DOT was barred by sovereign immunity. Id. at *1. Additionally, as mentioned further above, any cases that may be cited regarding vegetation or sidewalks regarding joint liability within a right of way are distinguishable in certain circumstances, because there exists statutory duties which do not exist in tree cases. 75 Pa.C.S. 6112 (2013); 42 Pa.C.S. 8542(b) (6) (i) and (7).
In conclusion, there are cases that support holding a property owner jointly liable with a state agency that controls a portion of the property. However, under certain circumstances, there is no liability of the property owner. The factors that will determine the property owners liability is the state’s interest in the property and the condition of the tree in question.
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