This Response to Ian McElhaney’s note examines (1) the background legal context that got us to where we are on falling-tree liability; (2) how this peculiar issue fits into Virginia’s general approach to the law; and (3) presents some thoughts on Mr. McElhaney’s reasoning and ultimate conclusions in urging liability for road maintainers.
Washington and Lee Law Review - Negligence
Response
by E. Kyle McNew
In his Note, Ian McElhaney concludes that the Court got it right in Cline v. Dunlora South, LLC—that the landowner owes no duty to protect travelers on adjoining roadways from natural conditions on the landowner’s property—because the Court also got it right in Cline v. Commonwealth when it held that the Commonwealth of Virginia may have that duty instead. In the narrowest view, that is certainly a defensible position. If the case is just about natural conditions and roads, then there is intuitive appeal in saying that they are the Commonwealth’s roads; so, it is the Commonwealth’s job to make them safe for travel, which includes remediating dangerous conditions on adjoining property. It also makes perfect sense from a policy standpoint to say that the Commonwealth should shoulder that burden. This Response disagrees, however, that either of these are reasons to suggest that the Court got it right in Cline v. Dunlora South, LLC, primarily because that conclusion is premised upon viewing the case with too tight of a lens. Rather, the question—and thus the answer—should have been framed more broadly so as to provide guidance for a broader range of fact patterns.
Note
by Ian J. McElhaney
This Note considers whether a duty for road-maintaining entities is tenable under Virginia law. It also explores the rationale for imposing differing liabilities between landowners and road-maintaining entities. Part III reviews the various duties other states use with respect to dangerous roadside trees and concludes that the duty of reasonable care is most appropriate for Virginia. Sovereign immunity is a companion issue and is addressed in Part IV. The Part provides a brief overview of the policy arguments for sovereign immunity, before reviewing immunity’s impact at the state, county, and municipal levels. The Part also addresses a government employee’s entitlement to immunity, before considering a potential legislative solution to some of the present difficulties associated with sovereign immunity. Finally, this Note reviews anticipated impacts in the world of litigation as a result of the duty of reasonable care, before addressing the legal and policy arguments of those who say the impact of such a duty would be negative.
* This Note received the 2018 Washington and Lee Law Council Law Review Award, and was presented at the 2018 Student Notes Colloquium on October 4, 2018.
