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BARKER v. BROWN ET AL. (06/24/75)

decided: June 24, 1975.

BARKER, APPELLANT,
v.
BROWN ET AL.



Appeal from judgment of Court of Common Pleas of Centre County, April T., 1967, No. 66, in case of Virginia Barker v. L. Edwin Brown and Edith J. Brown.

COUNSEL

David B. Corneal, with him Litke, Gettig, Flood, Lee & Martin, for appellant.

John W. Blasko, with him McQuaide, Blasko & Brown, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 236 Pa. Super. Page 77]

This case presents the question of the liability of a possessor of land for damages caused by the fall of his tree upon the property of an adjoining landowner. Surprisingly, the precise issue raised has never before been determined by a Pennsylvania appellate court. The plaintiff-appellant, Virginia Barker, appeals from the lower court's grant of a motion for summary judgment in favor of the defendants-appellees, L. Edwin Brown and Edith J. Brown. We disagree with the lower court's conclusion of law and, therefore, will reverse.

Viewing the facts in the light most favorable to the appellant, as we must for the purposes of this appeal, Gast v. Petsinger, 228 Pa. Superior Ct. 394, 323 A.2d 371 (1974), the record establishes that the appellant's property, in Centre County, Pennsylvania, adjoined that of the appellees, and that both properties are in a residential district of State College Borough. On appellees' property was a large tree which appellees knew, or should have known, was in a decayed, rotting and dangerous condition. Appellees negligently failed to take steps to avert the danger and, as a result, the tree fell onto appellant's property. The fall of the tree caused the destruction of two of appellant's trees, valued at approximately $600 each. Appellant had to have the fallen tree removed from her property, at a cost of $147.50, and the process required appellant to miss two days of work, causing lost wages of $34.00. Finally, the incident caused a depreciation in the value of appellant's property, in the amount of $600.00. In this action, appellant seeks to recover those damages from appellees.

[ 236 Pa. Super. Page 78]

The dispute proceeded to arbitration, and the panel of arbitrators rendered their award in favor of the appellees. Appellant appealed that decision to the Court of Common Pleas of Centre County, where the summary judgment presently under consideration was granted.

The basis for the decision of the lower court, and of the panel of arbitrators,*fn1 was Section 363 of the Restatement (Second) of Torts (1965). That section provides:

"(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.

(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway."

Subsection (2), by creating a specific exception to subsection (1) for trees near a highway, would seem to remove all doubt as to whether subsection (1) was intended to apply to trees not near a highway. Clearly, it was so intended, and the application of ยง 363 would preclude recovery in this case. However, for the reasons set forth hereinafter, we decline to apply the ...


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