Section 363 Restatement of Torts
A couple of years ago in Illinois, a married couple was riding together on their motorcycle along a stretch of road that bordered densely wooded property owned by the defendant. Adjacent to this property were a number of rotted trees. Unfortunately a large tree on the defendant’s property fell onto the roadway and struck the motorcycle, killing the wife and seriously injuring the husband who was driving.
The plaintiff filed suit with negligence, wrongful death and survival counts in the complaint. The defendant filed a motion to dismiss, citing Section 363 of the Restatement (Second) of Torts, which states that a possessor of land is not liable for injuries caused to others by a natural condition of the land.
However, Section 363 also states that a possessor of land in an urban area is subject to liability to people using a public highway for injuries resulting from the failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near a highway.
The plaintiff argued that the defendant had a duty to maintain the trees bordering the highway and there should be not be different rules for urban versus rural areas without considering all the facts. The trial court granted the motion to dismiss.
On appeal the plaintiff argued that the defendant had actual notice of the defective trees and the courts should not use such strict adherence to the rule of section 363. The appeals court reversed. In doing so it looked at multiple decisions from other jurisdictions. It found that the parties should be allowed to proceed with discovery to obtain more information regarding various factors such as the size and type of the road, the traffic patterns of the road, the condition of the tree and the burden of inspecting and removing the danger.
So, if you have a client that owns forest land that abuts a main roadway it would be in their interest to inspect their property especially where the road is a regularly traveled stretch of road.
