Issue Spotting Exercise

Issue

Should Dawson cover the cost of car repairs given The Starke Rule (‘the possessor of land adjacent to developed area is subject to liability given the exercise of reasonable care would have made it reasonably safe’, reasonable care at least encompasses a duty to make a visual inspection) despite the fact that a reasonable person may have considered this tree to be without danger (Dawson was not given constructive notice of her decaying tree)?

Rule

The Starke Rule posits that ‘A possessor of land in or adjacent to a developed or residential area is subject to liability for harm caused to others outside of the land if an exercise of reasonable care by the possessor (at the very least visual inspection) would have made it reasonably safe.’ The Starke Rule gives the possessor of land the duty to eliminate this danger.

The precedent set in Scquicquero v. Ross shows that the jury, shown a tree presenting visual indications of disease, including seams, splitting in the tree trunk, dead wood, and rotted wood, could have inferred that a reasonable inspection of the tree would have disclosed the possible danger. Further, that the “jury was also free to conclude that given the external signs of decay, the defendant should be charged with constructive notice of the diseased and decayed condition of the tree.”

Analysis

The analysis pertaining to this issue considers whether the possessor of land would or should have known through visual inspection whether there was an unreasonable danger and subsequently would have been in breach of her duty to eliminate the danger.

Tree expert Hazel Lorax concluded that the “tree had several dead limbs facing the road, several sections of trunk without any bark, and one substantial wound in the trunk…[which] looks like it was rotting and moldy.”

Given the precedent set in Scquicquero v. Ross and similarities present in both trees (the rotten wood, external signs of decay), it can be considered that Dawson acted in breach of her duty as a reasonable person in ignoring the visual signs of decay present in the tree, and as such, contributed to the damage done to Paquette’s vehicle.

Issue

Should Dawson cover the cost of car repairs given The Starke Rule (‘the possessor of land adjacent to developed area is subject to liability given the exercise of reasonable care would have made it reasonably safe,’ reasonable care at least encompasses a duty to make a visual inspection) despite the fact that her land may not be considered adjacent to developed land/in an urban area (her land is adjacent to State Route 3 (a country road))?

Rule

The Starke Rule posits that ‘A possessor of land in or adjacent to a developed or residential area is subject to liability for harm caused to others outside of the land if an exercise of reasonable care by the possessor (at the very least visual inspection) would have made it reasonably safe.’

Section 363(2), Restatement (Second) of Torts: A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm from his failure to exercise reasonable care to precent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

On the other hand, Subsection 2 states that: the institute expresses no opinion as to whether the rule stated in subsection 2 may not apply to the possessor of land in a rural area.

The ruling in Wynkoop v. Luke writes: “A possessor of land in a non-urban area is subject to liability to persons using a public highway for physical harm resulting form his failure to exercise reasonable care to precent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”

Analysis

The analysis in Wynkoop v. Luke writes that on average, “more than 5,600 motor vehicles per day travelled past this site – a rate of one vehicle every 15 seconds. The chance that a tree falling upon the highway and causing serious harm to a motorist is substantial.”

With Dawson, there are over 3,000 motor vehicles per day on the State Route adjacent to the property. This would align, though significantly less (with around 1 car every 15 seconds), with the test put to Wynkoop v. Luke, but still makes the risk of damage substantial. As written in Wynkoop v. Luke, “the amount of care required by the law must be in keeping with the degree of danger involved.”

Conclusion

This would lead to the conclusion that not only would Dawson be held accountable for a breach of the duty given to her for reasonable care as a landowner adjacent to a public road, but she should also be held accountable even though the road may not be considered ‘developed’ or a ‘public highway.’

The duty – to eliminate the danger posed by the tree that the possessor should know, as outlined in Baker, which was subsequently breached by Dawson’s negligence, which played a part in the harm caused to Paquette’s motor vehicle.

One might also consider the extent of the harm caused – in which it is merely to property and not physical, and the marked difference with the cases used for precedent (where a left arm was serious injured and a child had died). As the legal definition for harm encompasses damages done to property, this issue would be considered invalid even though Paquette was not harmed and the property was considered his for the duration of his rental contract.