Supreme Court Reverses Court of Appeal’s Case Establishing Duty on Urban Land Owners

June 23, 2008

The Supreme Court published Commonwealth Transportation Cabinet v. Sexton , which dealt with the duties imposed on the Department of Highways to inspect for dead or decaying trees on its property.   You may recall my earlier post noting the grant of discretionary review after the Court of Appeals established a new duty on urban landowners to inspect for dead and decaying trees.

Essentially, the Court of Appeals held that urban landowners (whatever that means) could be held liable for failing to inspect and find dead or decaying trees that caused damage to adjoining property owners.  The law as it exists now requires some knowledge of the state of the tree before liability will attach under ordinary negligence principles.  So, the Court of Appeals opinion greatly expanded the duty to all property owners in urban areas, and not just the Commonwealth.

The Supreme Court reversed this case without really discussing that duty.  According to the SC, the actions of the Department of Transportation in locating dead trees and removing them was discretionary.  Since it was discretionary the Commonwealth did not waive sovereign immunity.  Since sovereign immunity applied, no liability existed against the Department of Transportation for failing to locate and remove the dead trees.  The SC did not reach the issue of an expanded duty believing it was unnecessary.  The case was reversed, so that portion of the Court of Appeals decision is vacated.

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