Car Accident From Falling Trees
Brien Roche
Falling trees may be a hazard anywhere. They become a particular hazard if they fall onto a roadway or onto a home.
Car Accident Falling Trees-Va. Supreme Court
The Virginia Supreme Court has addressed the issue of whether a landowner is liable for a tree falling on a public road. In the case of Cline v. Dunlora South, LLC, 284 Va. 102 (2012), the Virginia Supreme Court said that there is no common law duty on landowners to protect individuals traveling on adjoining public highways from natural conditions on the landowner’s property. The only duty that exists is a duty to abstain from doing any act by which some part of the highway will become more dangerous to the traveler than it was in the state of nature. That is, the landowner cannot do something to a tree that might make it less stable, thereby causing it to fall on a public street.
Common Law
That case is premised on what is called the “common law of England”. The common law is the case law. That case law is the case law from England that we inherited.
Virginia adheres to the idea that the common law of England prevails unless it is abrogated by statute or contrary to our constitution.
Falling Trees-Local Ordinance
Many localities have enacted ordinances requiring that property owners do certain things to maintain trees on their property. Furthermore they require that property owners not allow trees to get to a condition where they are in danger of falling and thereby endangering human life and/or property. Those statutes or ordinances in that way abrogate the common law. However there is no statewide law in that regard.
Premising your case on anything the local ordinances may say is a long-shot. However there may be a basis for a nuisance suit. A nuisance is anything that endangers life or health or obstructs a public way.
Car Accident Falling Trees-State Code
Virginia Code section 33.2-801 makes it a Class 1 misdemeanor to obstruct any highway. That’s a clear statement that there is a duty not to obstruct. Allowing a tree to fall on a public highway obviously is a breach of that duty. However the statute does not create a cause of action.
The Common Law of England is the Law of Virginia and is Binding.
Virginia Code § 1-200 is the Code section that recognizes that the English common law continues in Virginia. It could not be any clearer:
The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and the Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.
A correct paraphrase of that single sentence is: The common law of England controls in Virginia unless it is repugnant to the principles of the Bill of Rights and the Constitution of Virginia or has been altered by the General Assembly.
These words are simple and clear. They mean what they say. There is no ambiguity. Therefore there is no need to look outside of the context of the statute to determine its meaning. REVI LLC v. Chicago Title Insurance Co., 290 Va. 203, 776 S.E.2d 808 (2015) FN9
Virginia Adopts English Common Law
In an unbroken chain of decisions, the Virginia Supreme Court has affirmed that “…the common law of England…is our law…” Wilson v. Shackleford, 25 Va. 5, 7 (1826). The inaction of the legislature in not changing the rule of the common law creates a presumption that the common law rule prevails citing English cases from 1892 and 1893. Foster v. Commonwealth, 96 Va. 306, 307, 310, 31 S.E. 503, 505 (1898).
Only the General Assembly has the power to alter the common law. Krauss v. City of Norfolk, 214 Va. 93, 95, 197 S.E.2d 205, 207 (1973), citing Muscoe v. Commonwealth, 86 Va. 443, 448 which in turn cites Galliard v. Laxton, an 1862 English case. It is with great reluctance that the Virginia Supreme Court has ever abrogated or modified English common law. Shirley v. Shirley, 259 Va. 513, 519, 525 S.E.2d 274, 277 (2000)
However the question then arises as to what exactly is the common law of England. It is the decisions from the law courts of England as opposed to the equity courts. It is one of the three (3) sources of English law with the other two (2) sources of English law being legislation and equity. Black’s Law Dictionary (11th Edition, 2019)
The Courts of England consist of the High Court which is the Queen’s Bench Division and also the King’s Bench Division, depending on who is the monarch, the Family Division and the Chancery Division. Above that is the Court of Appeals for the Civil Division and above that is the Supreme Court of the United Kingdom. The Supreme Court, through the Constitutional Reform Act of 2005, took over the Civil Appellate function of the House of Lords.
Virginia Code § 1-200 Has No Time Parameters
Virginia Code § 1-200 puts no time parameters on the common law of England that controls. The Virginia Supreme Court has relied upon English cases decided as recently as 1949, 1954 and 1974. Weishaupt v. Commonwealth, 227 Va. 389, 398-399, 315 S.E.2d 847, 851-852 (1984) Furthermore the foundation of the Cline case is the 1890 decision of Giles v. Walker from the Queen’s Bench Division, an English trial court.
The “common law of England” as that term is used in Virginia Code § 1-200 is not just that case law adopted prior to 1607. In Commonwealth v. Morris, 281 Va. 70, 81 (2011), the Court dealt with Virginia Code § 1-201. That Code section says that writs made in aid of the common law prior to 1607 shall be saved. A falling tree case does not deal with a writ. It has nothing to do with Virginia Code § 1‑201. Virginia Code § 1-200 contains no time parameters as does Virginia Code § 1-201.
If a Court is going to look outside of the “four corners” of Virginia Code § 1‑200 for its meaning, then what needs to be looked at is the history of both Virginia Code § 1‑200 and § 1‑201.
History of Virginia Code § 1-200
The history of Virginia Code § 1-200 is set forth below in chronological order with the origin of each Code section:
a. The 1819 Code is the 1 R. C. (Volume 1 – Ritchie Code), page 135, 136, chap. 38, 40. It recounts that as of July 3, 1776, what is being “received” or incorporated into the law of Virginia is the common law of England, with no time parameters, and “all statutes or acts of Parliament made in aid of the common law prior to the fourth year of the reign of King James the First, and which are of a general nature, not local to the kingdom, together with several acts of the General Assembly of this colony now in force, so far as the same may consist with several ordinances, declarations and resolutions of the General Convention…” (chapter 38). In chapter 40, § 3, it recounts that as of 1792 the statutes of England and the acts of Parliament had no force or authority in Virginia. However “Writs” are “saved” i.e., continued, § 5.
b. In the 1821 Code found at 9 Hen. Stat. p. 127, § VI, the legislative body stated that the common law of England, with no time parameters, and the English statutes made in aid of that common law prior to the fourth year of the reign of James the First (he reigned from 1603 to 1625) continued to be the rule of decision. This is apparently in recognition of the continued need for the application of some English statutes. The application of the English statutes was limited to those in existence prior to 1607.
c. In 1823, Volume 13 of Hening on page 23-24 states the English statutes are no longer controlling in Virginia.
d. The 1849 Code section § 1 is the same as the current Code. The Code of 1849 cites as its origin “Ord. of Convention, May 1776, p. 21. 9 Hen. Stat. p. 127 § 6. 13 Hen. Stat. p. 23, ch. 17; 1 R. C. p.135, 6, ch. 38, 40” which have been addressed above.
e. Code section 2 of 1887, the same as today’s Code section, dates back to 1849.
f. Code section 2 of 1919, the same as today’s Code section, dates back to 1887.
g. The current Code section, according to the “history”, dates back to Code § 1-10 of 1950 and 1919.
Takeaway from Virginia Code § 1-200
What we have then is:
a. In 1776, the common law of England with no time parameters and the statutes and acts of Parliament prior to 1607 are “received”.
b. In 1792, the statutes and acts of Parliament are repealed. That leaves the common law of England as fully intact with no time parameters.
c. As of 1849, the Virginia General Assembly made a clear break between Code § 1-10 (now § 1-200) and § 1-11 (now § 1-201), making them separate and distinct contextually. Whatever historical overlap existed between the two Code sections may be of some historical interest, but of no legal interest.
History of Virginia Code § 1-201
In looking at Code section of 1-201 which deals with English writs, the history is similar to what is seen with the English common law:
a. The 1819 Code recounts the “1776 reception” of the common law of England and all statutes or acts of Parliament made in aid of the common law prior to 1607 and the 1792 act where the statutes of England no longer have any force.
b. In the 1821 Code, section VI incorporates into the law of Virginia, English statutes and acts of Parliament prior to 1607.
c. The 1823 Code abrogates English statutes and acts of Parliament in Virginia.
d. The 1849 Code in § 2 adopts English writs prior to 1607.
e. In the 1887 Code § 3, reiterates that.
f. The 1919 Code in Section 3 states the same thing. It dates back to 1887.
g. Code § 1-11 deals with writs given by any statute or act of Parliament prior to 1607 and says that they shall be saved. The “history” states that Code section dates back to 1919. It is the same as Code § 1-201.
Takeaway from Virginia Code § 1-201
The takeaway from all of this is that initially Virginia was bound not only by the common law of England but also by the statutory law of England. The statutory law was then limited to that in existence prior to 1607. Then in 1849, Virginia further modified that provision and said that only certain writs in existence prior to 1607 may be binding upon Virginia courts. More importantly, the English common law continued to be binding without regard to any time parameters.
If a Court determines that the common law of England prior to 1607 is the only controlling case law from England, then that means in this instance that there is no controlling case law from England. In the absence of such case law, the common law of Virginia controls. That existing common law is best seen in the Restatement (Third) of Torts, § 54.
The common law of England recognizes a duty in the instance of falling trees. That is stated in the Noble case, a decision from the King’s Bench, an English trial court. The Caminer case is a decision from the highest court of England and restates the common law as stated in Noble to mean that there is a duty to inspect and maintain trees alongside a roadway where the condition of the trees is likely to cause damage to persons lawfully using the highways in the immediate vicinity.
Car Accident Falling Trees-Cline Not Binding
Cline is not binding:
a. The mandate to any Court is to apply the law of Virginia. Virginia law is found in the Virginia Code and also the decisions of the Appellate Courts of Virginia. The pertinent law from the Virginia Code is Code § 1-200. That mandate is clear and simple as stated above i.e., to apply the common law of England. The issue relating to Code § 1-200 was never presented to the Court in Cline and therefore it is no surprise that the Court did not consider the issue.
b. In Cline the Court applied the common law of England as presented to it. Cline at 106 based its identification of the common law of England on three (3) authorities:
Giles
An 1890 decision from the Queen’s Bench Division in Giles v. Walker which has no application to this case. That case dealt with the blowing of thistle seeds from one property to another. The present case deals with the death of a twelve (12) year-old. The Noble and Caminer cases deal with the circumstances applicable herein and state that the property owner is liable if he omits to remedy a condition after he ought to have been aware of it. In Caminer, the Court went on to say that it is the duty of all property owners to manage their property in accordance with principles of good estate management. Noble and Caminer were not addressed in Cline and probably were not even available to Counsel or to the Court at that time. As such it is fully understandable why they were not addressed.
In McDiarmid Associates v. Yevdokimov, 2022 W.L. 2284337 (unpublished), in Footnote 3 the Supreme Court noted that “The import of the 1890 English case Giles v. Walker, which was relied upon in Cline for this proposition, is doubtful given that it was decided well after the adoption of English common law in Virginia under both the 1776 ordinance and the 1792 reception statute, see White v. United States, 300 Va. 269, 277 n.5 (2021). Also concerning is that the broad reliance upon Giles for the rule of non-liability as to natural conditions has been heavily criticized….”
This reference to White is noteworthy because in that same footnote in White, the Virginia Supreme Court says that no opinion is offered as to whether 1776 or 1792 fixed the date of Virginia’s adoption of the English common law. As stated above, the date of reception/incorporation is not dispositive since Virginia Code § 1-200, unlike Virginia Code § 1-201, has no time parameters.
Prosser
Prosser’s Fifth Edition, page 391. The authors state “The tree cases may suggest that the ordinary rules as to negligence should apply generally to natural conditions at least in urban and residential areas, so that the inquiry would focus upon such factors as the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented, in light of all the circumstances.”
Driggers
Driggers v. Locke, 913 S.W.2d 269 (Ark. 1996). Driggers did not involve a falling tree. It involved some holly bushes growing on private property that impaired visibility at an intersection. In Driggers, plaintiff’s counsel conceded that there was no common law duty imposed upon a landowner to control the vegetation on his property for the benefit of users of a public highway. Driggers at 272. Nowhere in Driggers does the Court cite any English common law. Nowhere in Driggers does the Arkansas Court state what it means by common law. Nowhere within Driggers does it state that it is relying upon the common law of England. Nor is there any statutory foundation for such reliance as there is in Virginia. Interestingly the Driggers court does cite Prosser’s Fifth Edition which includes the quoted passage above. Driggers at 272.
Stare Decisis
Although a Court must apply binding precedent from the higher courts of this jurisdiction, the emphasis is upon “binding”. As stated herein, Cline can be distinguished from other falling tree cases.
Any reliance upon the principle of stare decisis as to Cline, is likewise misplaced where the interests relied upon in Cline and in this case are not property rights but rather simply issues of tort law. Hampton v. Meyer, 299 Va. 121, 132-133, 847 S.E.2d 287, 293 (2020)
Finally in regards to the issue of stare decisis/binding precedent, the U.S. Supreme Court has recently addressed that issue in Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022) where it acknowledged that stare decisis serves many valuable ends but it is not an inexorable command. However what is an inexorable command is that the Court get it right.
Call, or contact us for a free consult. Also for more info on falling trees see the Wikipedia pages. Also see the page on this site dealing with premises liability issues.