Liability of Landowner to Passing Motorist for Falling Trees

In the case of Harris v. Felouzis, No. 85 WDA 2023 (Pa. Super. Feb. 10, 2025 Kunselman, J., Lazarus, J., and Bender, J.) (Op. by Kunselman, J.) (Bender, J., dissenting), the court affirmed the entry of a judgment in favor of a Plaintiff in a case involving a Plaintiff motorist who was injured when a 110 year old oak tree fell from a Defendant’s property onto an adjacent road.

The issue was, as Judge Bender aptly put it in his Dissenting Opinion, "[i]f a tree falls on a busy road and injures someone, does it automatically sound in negligence?"

In this case, the court reaffirmed Pennsylvania law that holds that a landowner that allows trees to grow on the property unchecked can be held liable in negligence to motorists injured when a tree falls onto an adjacent road. The court noted that no visible defect in the tree or expert testimony is required. Rather, the standard is reasonable care under the circumstances.

The court noted that, if the condition of the tree could have been known by the exercise of ordinary care, then the Defendant landowner must exercise reasonable care to prevent the tree from falling and injuring anyone who may be using the adjacent road. The law puts the burden on the landowners given that the landowners have access to their own property and the passing motorists do not.

The court noted that the public right of passage on roadways carries with it once the highways have been established, and obligation on occupiers of abutting land to use reasonable care to ensure that the passage way is safe.

Landowners are not allowed to simply let nature take its course.

The Court otherwise rejected the notion that all motorists who use the roadways assume the risk of trees falling upon them.  

This decision is also notable for the Superior Court’s noting that a Motion for Summary Judgment that was denied based upon the sufficiency of the evidence is superseded by the trial record and cannot be separately appealed once a verdict has been entered.

Anyone wishing to review a copy of this decision may click this LINK.

Judge Bender's Dissenting Opinion can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Mick Haupt on www.unsplash.com.

Is There Liability Against PennDOT if a Tree Falls on a Passing Motorist?

In the case of Schmidt v. Pennsylvania Dept. of Transp., No. 33 C.D. 2023 (Pa. Cmwlth. Oct. 11, 2024 Jubelirer, P.J., Dumas, J., and Wolf, J.) (Op. by Dumas, J.), the Pennsylvania Commonwealth Court reversed a trial court Order and remanded the case with instructions that summary judgment be entered in favor of PennDOT based upon sovereign immunity. 

According to the Opinion, the subject accident involved a Plaintiff who sustained fatal injuries after the branch of a large tree, which was overhanging the roadway, fell and crushed his vehicle as the Plaintiff drove by.

According to the Opinion, the tree was planted on property owned by the Southeastern Pennsylvania Transportation Authority. The court noted that, although the branches of the tree extended over the road and PennDOT’s right-of-way, the base of the tree was located outside of PennDOT’s right-of-way.

Accordingly, the appellate court found that PennDOT was entitled to sovereign immunity under claims against it where the tree did not derive, originate from, or have as its source any PennDOT real estate.

The court held that the case therefore did not fall under the real estate exception to the sovereign immunity allowed for under the Sovereign Immunity Act, 42 Pa. C.S.A. §8501-8564.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (Nov. 5, 2024).

Source of image:  Photo by Efrem Efre on www.pexels.com.

No Duty of Care Created by Simply Giving a Thumbs Up To Proceed With Cutting Down a Tree

In the case of Miller v. Kinley, No. 22-00349 (C.P. Lyc. Co. June 18, 2024 Carlucci, J.), the court granted a Defendant summary judgment based on a finding that simply given a Plaintiff a “thumbs up” signal during the course of cutting down a tree did not create a duty of care by that Defendant when the tree that the Plaintiff was cutting fell on the Plaintiff.

In this case, the Plaintiff alleged that the Defendants had granted him permission to cut down trees on their property. The Plaintiff alleged that one Defendant, who had transported the Plaintiff to the property, agreed to assist in the removal of the trees by acting as a spotter and a safety coordinator.

The court noted that the Plaintiff failed to support this allegation with his deposition testimony.

The Defendant at issue filed a Motion for Summary Judgment. The court found that the Defendant was entitled to summary judgment because there was no genuine issue of material fact as to any duty owed by that Defendant to the Plaintiff. The court found that no reasonable jury could find that, by giving the Plaintiff a “thumbs up” signal, that Defendant assumed as duty of care to ensure that the Plaintiff safely cut down the tree and stay out of its way as it fell.

Judge Carlucci noted that, under the common law of Pennsylvania, absent a special relationship between the parties, there is no duty to control the conduct of a third party to protect another from harm.


Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer Common Pleas Case Alert” Law.com (Aug. 22, 2024).

Court Finds Issues of Fact Relative to Sudden Emergency Doctrine Preclude Summary Judgment

In the case of Cox v. Cemex, Inc., No. 10132 of 2020, C.A. (C.P. Lawr. Co. March 20, 2023 Motto, P.J.), the court denied a Defendant’s Motion for Summary Judgment in a Plaintiff’s personal injury litigation arising out of a motor vehicle accident.

According to the Opinion, the Plaintiff was a passenger in a vehicle being operated by the Defendant when the vehicle was struck by a tree located on a property next to the road. The Plaintiff sued the Defendant driver, the Defendant’s business, and the owner of the property where the tree was located, among other parties.

There was conflicting evidence about how the accident occurred.

The Defendant driver maintained that the accident happened as he was driving around a curve in the road and oncoming traffic crossed the centerline, forcing the Defendant driver to move his right in his own lane. The Defendant driver denied that his vehicle left the roadway.

However, in his 911 call and alleged statement to ambulance crew members, the Defendant driver allegedly stated that he had run off the road and that a tree had come through the door injuring the Plaintiff. There was also conflicting testimony as to whether there were any tire tracks off the roadway.

The Defendant property owner had testified that the trees on his property had been trimmed to ensure that they did not protrude over the road. Also, a local police officer who routinely patrolled the area confirmed that he did not observe any parts of a tree protruding over the road.

Additionally, the Plaintiff testified that the oncoming vehicle had moved back into its own lane of travel before encountering the Defendant’s vehicle and that the Defendant driver had approximately ten (10) seconds to respond after first seeing the other vehicle.

The court found that issues of fact, including on the issue of sudden emergency doctrine, required the court to deny the Defendant driver’s Motion for Summary Judgment.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 4, 2023).

Source of image:  Photo by David Lin from www.pexels.com.

Real Estate Exception to Immunity to PennDOT Applied in Case Where Tree Fell on Passing Motorist

In the case of Schmidt v. Penn. Dep’t. of Transp., No. 2019-CV-12057 (C.P. Montg. Co. Feb. 27, 2023 Saltz, J.), the court denied a Motion to Dismiss filed by PennDOT in a case involving a tree that fell upon a passing vehicle on a Commonwealth owned road.

PennDOT filed a Motion to Dismiss asserting sovereign immunity.

The court reviewed the real estate exception to sovereign immunity cases involving fallen trees.

The court noted that, while the Commonwealth of Pennsylvania is generally immune from suit, the Pennsylvania legislature had waived that immunity in certain limited instances as outlined in 42 Pa. C.S.A. §8522(b).  The exception applicable in this case applied to alleged dangerous conditions on the Commonwealth’s real estate, highways, and sidewalks.

In this matter, the court found that the applicability of the real estate exception depending not on the characteristics of the portion of the tree that constituted the dangerous condition, but on the location of that portion of the tree with respect to the Commonwealth’s property.

The court determined that the Plaintiff had properly asserted that the tree fell within the Defendant’s right-of-way.  As such, the court rejected PennDOT’s argument that the exception did not apply because only a portion of the tree fell within that right-of-way.

The court additionally noted that the Plaintiff’s evidence presented to date, which included expert testimony, implicated the real estate exception to the sovereign immunity afforded to the Commonwealth of Pennsylvania in this case.

As such, the Defendant’s Motion for Summary Judgment was denied.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 21, 2023).

Summary Judgment Denied In Case of Passing Motorist Injured By Low Hanging Tree

In the case of Cox v. Cemex, Inc., No. 10132 of 2020, C.A. (C.P. Lawr. Co. Dec. 19, 2022 Motto, P.J.), the court denied the Defendant’s Motion for Summary Judgment in a case in which a Plaintiff, who was a passenger in a vehicle at the time of this accident, was struck in the abdomen by a tree as the vehicle drove by the Defendant's property.  It was alleged that the tree at issue was located on the Defendant’s property and was allegedly protruding over the roadway.

There was evidence in the case that, during the course of the accident, the vehicle in which the Plaintiff was located in was traveling on a curve in the road and that vehicle was allegedly forced to swerve over towards a berm due to an oncoming vehicle.

In addressing the Motion for Summary Judgment at issue, the court held that, while liability can be imposed upon a landowner and a municipality where an object obstructs a roadway and causes injury, in this case, there were genuine issues of material facts regarding whether the tree that injured the Plaintiff was indeed protruding over the roadway from the landowner’s property at the time of the accident. As such, the Defendants’ Motion for Summary Judgment was denied.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 7, 2023).

Source of image:  Photo by Kelly on www.pexels.com.

If No Coverage Under Policy, Then No Bad Faith

In the case of Walker v. Foremost Ins. Co., No. CV-20-4966 (E.D. Pa. March 2, 2022 McHugh, J.), the court followed prior precedent in granting summary judgment on a bad faith claim after finding that there was no coverage due on the policy in question.

According to the Opinion, this case arose out of an incident during which a homeowner’s fallen tree damaged her neighbor’s property.

The neighbor and the neighbor’s carrier sued for damages.

The homeowner’s carrier asserted that its policy did not provide liability coverage for the claim at issue.

The neighbor filed for breach of contract and bad faith.

After finding that no coverage was due under the policy and granting the homeowner’s carrier’s Motion for Summary Judgment on the breach of contract claim, the court likewise granted the summary judgment on the bad faith claim indicating that, since there was no coverage due under the policy, “by definition, the insurer had a reasonable basis to deny the benefits.”

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order can be viewed HERE.


I send thanks to Attorney Lee Applebaum of the Philadelphia law office of Fineman, Krekstein & Harris for bringing this case to my attention through his Pennsylvania and New Jersey Insurance Bad Faith Case Law blog.

Photo by Castorly Stock on www.pexels.com.

Bad Faith and UTPCPL Claims Dismissed in Damage to Motorhome Case

In the case of Moravia Motorcycle, Inc. v. Allstate Insurance Company, No. 2:21-CV-01274-PLD (W.D. Pa. March 3, 2022 Dodge, M.J.), a federal magistrate district court judge for the Western Federal District Court of Pennsylvania issued a Memorandum Opinion in an insurance bad faith case.

According to the Opinion, the Plaintiffs owned a motorhome that sustained storm damage when a tree fell on top of the motorhome, which allowed rainwater and other moisture to penetrate the motorhome and cause damage to the interior and the Plaintiffs’ property located inside.

The Plaintiffs asserted that they were advised that the policy would provide coverage for this type of loss. When they notified Allstate of the damages, Allstate refused to provide coverage. The Plaintiff sued for a breach of contract, bad faith, and for treble damage under the Unfair Trade Practices and Consumer Protection Law.

After reviewing the facts before it, and applying the relevant law, the court granted Allstate’s Motion to Dismiss the Plaintiff’s claims of negligence and bad faith without prejudice. The court also granted Allstate’s Motion to Dismiss with prejudice relative to the claims under the Unfair Trade Practices and Consumer Protection Law.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

No Duty of Care Found on Service Companies Where Tree Limb Fell and Injured Plaintiff

In the case of Matthews v. Prospect Crozer, LLC, No. 355 EDA 2020 (Pa. Super. Nov. 23, 2020 Dubow, J., Lazarus, J., Ford Elliott, P..J.E.) (Op. by Dubow, J.), the court affirmed a trial court dismissal of the Plaintiff’s negligence claims against certain Defendants where there was no evidence that those Defendants undertook an ongoing duty to perform inspections and maintenance of trees on the property in a case where a tree limb fell and injured the Plaintiff. 

According to the Opinion, the Defendant landowner had a contract with the landscaping company and a snow removal company to periodically do work on the premises as needed. 

According to what the court termed as "hypothetical evidence" generated during the course of discovery, the landscaping Defendant and the snow removal Defendant generally noted that they would have notified the property owner if either noticed an issue with the trees on the property. 

The landscaping Defendant also noted it had occasionally performed tree-related work years prior to the incident. 

It was also generally and hypothetically noted during the course of discovery that the property owner expected both companies to inspect and maintain trees on the property as of the time of the Plaintiff’s incident.

The Superior Court affirmed the trial court’s entry of summary judgment after finding that the testimonial evidence cited by the Plaintiff in the record was hypothetical in nature and, therefore, insufficient to support any argument that the landscaping company or the snow removal company undertook a duty to inspect and maintain the trees on the property.

The court also noted that the fact that the landscaping company had occasionally performed tree-related work years before the subject incident was also insufficient to establish that the landscaping company had gratuitously agreed to inspect and maintain the trees.

The court also noted that the property owner’s stated alleged expectation that the Defendant companies would have maintained the trees was also insufficient to impose a duty upon the landscaping company and the snow removal company in the absence of any evidence that they actually undertook that duty.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 8, 2020).

Source of image: NewsNowDC.com

Encroachment By Trees Determined to Be a Continuing Trespass for Statute of Limitations Purposes

In the case of Long v. Reccek, No. 3458 EDA 2019 (Pa. Super. Nov. 25, 2020 McLaughlin, J., Pannella, J., McCaffery, J.) (Op. by McLaughlin, J.), the Superior Court reversed the entry of summary judgment in a trespass/nuisance case involving a neighborly dispute regarding overhanging trees. 

The appellate court ruled that the alleged encroachment upon the Plaintiff’s property by trees growing on the Defendant’s property constituted a continuing trespass and nuisance such that the statute of limitations had not yet run on the Plaintiff’s claim.

The court noted that, under Pennsylvania law, whether a trespass or a nuisance is permanent or continuing involves an analysis of the character or what produced the injury, whether the consequences will continue indefinitely, and whether past and future damages may be reliably ascertained.

The court noted that the trespass/nuisance in the form of overhanging trees is a continuing wrong given that trees would obviously continue to grow such that any encroachments are bound to continue to occur.

As noted, the appellate court reversed the trial court’s entry of summary judgment.


Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  www.aboristsnearme.com

Standards for Damages in a Civil Trespass Action Reviewed by Judge Nealon of Lackawanna County

In the case of Huffsmith v. PPL Electric Utilities Corp., No. 11-CV-1012 (C.P. Lacka. Co. Nov. 3, 2018 Nealon, J.), the court addressed the appropriate standard for the assessment of damages in a trespass action.  

This case arose out of a trespass action filed by the Plaintiff against various Defendants seeking to recover damages for the allegedly intentional removal of fully-grown evergreen trees along the Plaintiffs’ property.   In this decision, the court addressed various Motions In Limine filed by the Defendant, PPL, which motions were joined in by the certain other Defendants as well.

In his Opinion, Judge Nealon reaffirmed the rule of law in Pennsylvania that a person is subject to liability for trespass on land in accordance with the provisions of the Restate (Second) of Torts §158.

Under that Restatement (Second) of Torts §158, a party is subject to liability to another for trespass if that party intentionally enters another’s land or causes a thing or a third person to do so.  

The court also noted that a person who authorizes or directs another to trespass upon another person’s land is also liable himself or herself as a trespasser to the extent if the trespass was committed directly by the person directing the activity.   Judge Nealon noted that this rule of law applies even if the authority or direction is given to one who is an independent contractor.   

Based upon the allegations of the Plaintiff that the subcontractor intentionally entered their land and unlawfully removed trees at the direction of PPL, the court found that liability for trespass may also be imposed upon PPL under the circumstances presented.   The court also rejected the contention of PPL that the Plaintiffs were barred from offering evidence of damages at trial as the Plaintiff’s never produced an expert report to document their damages.   The Plaintiffs countered with an argument that all landowners are competent to testify as to the value of their property.

In ruling on this issue, Judge Nealon noted that the proper measure of damages in trespass actions seeking to recover damages to injuries for land is well settled.   Under this settled rule of law, if the land is repairable, the measure of damage is the lesser of: (1) the cost of repair, or (2) the market value of the damage property (before it suffered the damage, of course).  

If the land is not repairable, the measure of damages is the decline in market value as a result of the harm.  

In this Huffsmith case, the trees removed were at least 70 feet tall and that it would take several decades before newly planted trees could become full grown to that height.   Given that the Plaintiffs were unable to find comparable affordable replacement for the twelve (12) trees that were removed that were 60-70 feet in height, the court found that the claimed damage to the Plaintiffs’ property by the removal of the trees was irreparable and that the proper measure of damages would be the decline in the market value as a result of the harm.   Judge Nealon additionally ordered that the Plaintiffs would be allowed to offer their lay opinions at trial as to the decline in the value of their property that was allegedly caused by the removal of the trees.  

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon noted that any objection to that testimony by the Defendants would relate to the weight of that testimony rather than its competency or admissibility.  

On another issue, the court also ruled that, under Pennsylvania law, a tortfeasor’s actions in intentionally removing another party’s trees has been deemed sufficient to warrant the imposition of punitive damages in a trespass case.   Moreover, in this matter, the Plaintiffs allege that PPL directed the removal of their trees in retaliation for the Plaintiffs’ earlier objections to a PPL project, thereby arguably evidencing a state of mind to support a claim for punitive damages. 

Therefore, based upon the record before the court, Judge Nealon allowed the Plaintiffs’ punitive damages claims to proceed.  

This decision can be viewed online at this LINK.