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 - Virginia law
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.
Development
by Horace
In Commonwealth v. Morris, the Supreme Court of Virginia properly decided that the writs of coram vobis and audita querela may not be used to modify a final criminal conviction order more than twenty-one days after its entry. The court decided the inapplicability of coram vobis under Virginia Code § 8.01-677 and its own precedent. It decided the inapplicability of audita querela under the English common law, citing cases from 1670, 1701, and 1792. In the course of the opinion it conflated Virginia Code §§ 1-200 and 1-201 and held in dictum that Virginia’s adoption of the common law of England “ends in 1607 . . . . From that time forward, the common law we recognize is that which has developed in Virginia.” This was dictum because the opinion holds the common law of England on the use of the writ of audita querela was the same before and after 1607. Your author submits this dictum is erroneous considering the years of decision of the English cases cited, the plain meaning of the two applicable statutes, and the court’s own precedent.
