The Texarkana Court of Appeals has rejected an invitation to impose on rural landowners a duty to inspect trees that may fall on an adjacent public roadway and cause injury to a passing motorist.
Katherine Toole Bell, Individually, and Katherine Toole Bell On Behalf of the Estate of Jo Ann Toole, Deceased v. Sharon Cain and Michael Cain (No. 06-23-00060-CV; March 21, 2024) arose when Cain’s vehicle struck a tree on FM Highway 9 in Harrison County. The tree, which was located on Bell’s 148-acre tract adjacent to the highway, had fallen during a windstorm the night before the accident. Cain sued Bell for negligence, gross negligence, and public nuisance. She also sued Panola-Harrison Electric Cooperative (PHEC) for negligently pruning the tree. Plaintiff alleged that Bell “had a duty to inspect her premises and vegetation to ensure tree(s) were not in decay and unevenly balanced due to excessive pruning,” a duty which she failed to discharge in this case, causing foreseeable harm to Cain. PHEC moved for summary judgment on the basis that it owed no duty to Cain. Bell likewise filed a motion for summary judgment on a no-duty theory. The trial court granted PHEC’s motion, but denied Cain’s. It did, however, grant a permissive appeal on the duty issue to the court of appeals.
In an opinion by Justice van Cleef, the court of appeals held that the landowner owed no duty in this case. In general, the court observed that a defendant owes no duty to an injured plaintiff unless the defendant has “possession and control” of the property. Consequently, a property owner or occupier “owes no duty to make an adjoining public roadway safe or to warn [travelers thereon] of [any] potential danger in the roadway.” The court relied on SCOTX’s recent decision in HNMC, Inc. v. Chan (No. 22-0053; January 19, 2024) (a case reported on this website) for the proposition that “no one would think that a land possessor did have a duty of care to others for conditions not caused by the possessor on public highways and streets adjacent to the possessor’s land.” SCOTX recognized, however, that a defendant may owe a duty on premises it does own own or occupy in four specific instances. Cain alleged that this case falls within one of those instances, in which “a person who created the dangerous condition may be liable even if they do not control the premises when the injury occurred because the property owner may have a duty to avoid jeopardizing or endangering the safety of travelers on an adjacent roadway.”
The so-called “Kraus duty rule” originated in a heavily-criticizes 1981 SCOTX decision in Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908 (Tex. 1981). In Kraus, the Court found a landowner liable when a masonry wall immediately adjacent to a public roadway fell over while the landowner was demolishing a larger structure on the property. At the time, the landowner had prior notice that the wall was leaning and posed a potential danger to the roadway. Because the landowner caused the dangerous condition and had actual knowledge of the risk to the roadway, the Court held that it owed a duty to care to travelers on the roadway. In HNMC, however, SCOTX clarfied that the Kraus rule “only applies when the defendant created or permitted to remain ‘an excavation or other artificial condition so near an existing highway that [the owner or occupier] realize[d] or should [have] realize[d] that it involve[d] an unreasonable risk to others . . . traveling on the highway.” The Texarkana court has further held that Kraus “‘has been limited to cases where [a defendant property owner] negligently releases’ a dangerous agency upon the highway” (citations omitted).
Here the court ruled that the Kraus rule did not apply because Defendants did not “cause[] the tree to fall into the roadway, release[] a dangerous agency onto the roadway, or otherwise commit[]a negligent act.” Moreover, there was no evidence that Defendants knew or should have known about the danger posed by the tree. Finally, the court declined to apply the Phillips factors for creating a fact-specific duty in this case based on SCOTX’s directive in HNMC that courts should not turn to Phillips if a general no-duty rule applies. In this case, the general no-duty rule was dispositive.
One more note about Plaintiff’s public nuisance theory. In a footnote, the court dismissed it out-of-hand based on SCOTX’s holding in Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 590, 591 (Tex. 2016) that “nuisance is . . . not a cause of action.” It should be noted that Crosstex involved a private nuisance theory, not an assertion of public nuisance. In 2017, however, SCOTX denied review in Bolton v. Fisher, 528 S.W.3d 770 (Tex.App.—Texarkana, 2017, pet. denied), in which the Texarkana court held that nuisance was not a cause of action.
