Mass Tort Litigation Blog

February 27, 2007

I recently came across the Mass Tort Litigation Blog, an offering by Professor Byron Stier of the Southwestern Law School and Professor Howard Erichson of Seton Hall Law School. A member of the Law Professor Blogs Network it is full of articles specific to mass torts and class action. It includes posts on recent cases, developments and issues, as well as, resources, and publications dedicated to the topic. I found it to be a very interesting and informative on an ever increasingly important area of tort litigation. I have added the blog to my links.

Michael Stevens reports on his Kentucky Injury Law Journal that the Kentucky Supreme Court has granted discretionary review in the case of Commonwealth Transportation Cabinet v. Sexton. Sexton created a new duty for landowners with respect to their trees in heavily populated areas. Michael describes the new duty as follows:

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.”

Michael’s post contains links to the SCOKY order, the Court of Appeals opinion, and his earlier digest of the case. Click the link for Michael’s post.

As noted by the dissent, there currently is no duty for a landowner to discover trees, which may create a “reasonable risk of harm.” A landowner is only responsible for those trees which he knows or should know create an unreasonable risk of harm. His knowledge is the spark which ignites forseeability and establishes a duty. Two judges have now removed the requirement of knowledge. This new duty greatly expands the scope of a landowner’s responsibility. A landowner, or homeowner in urban areas, now has a duty to discover dead or decaying trees that create a risk of harm. I disagree that this is an appropriate course for a select panel of the Court of Appeals to take. If it is to be a new duty it will, and should come, from the Supreme Court.