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February 21st, 2025
In Harris v. Felouzis, 2025 PA Super 30 (Feb. 10, 2025), the Superior Court addressed a landownerâs duty to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near a highway and affirmed the trial courtâs decision to allow the question of negligence to be determined by the jury.
Ms. Felouzis purchased residential property that was the last parcel on a no-outlet street, which had a yard on its southern side that led to a precipitous drop down a hill. The densely wooded slope was so steep and dangerous she never walked on that part of her property. Below that steep and dangerous hillside was a busy, four-lane highway, which ran through a business district. Ms. Felouzis knew that her trees regularly fell down the hill toward the public highway but did nothing to ameliorate the situation.
Mr. Harris was driving on the highway when an old oak tree from Ms. Felouzisâ property fell on his car, causing him to swerve and hit a beer truck. Mr. Harris suffered a broken neck, bleeding on the brain, and a punctured hand.
Mr. Harris sued Ms. Felouzis alleging negligence. At the close of discovery, the trial court denied Ms. Felouzis motion for summary judgment, and the matter proceeded to a jury trial. At the close of Mr. Harrisâ case-in-chief, Ms. Felouzis moved for the entry of a compulsory nonsuit, contending the law required Mr. Harris to establish the tree was in an unreasonably dangerous condition because of a defect. The trial court denied the motion for nonsuit, because whether the tree was growing in a dangerous condition â as opposed to a defective condition â is a question that the jury could decide based upon the evidence. During the trial, Ms. Felouzis called Arborist Walter Jarosh as an expert witness. He had studied the fallen tree more than a year after the incident. Based on the rings of its trunk, Mr. Jarosh opined that the oak would have appeared healthy among all the other trees in the woods prior to it falling onto Mr. Harrisâs vehicle. The jury found Ms. Felouzis negligent. The trial court denied post-trial relief, and Ms. Felouzis filed her appeal.
JNOV can be entered if the movant is entitled to judgment as a matter of law and/or the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. See Kelly v. Carman Corp., 229 A.3d 634, 647 (Pa. Super. 2020). Ms. Felouzis argued Barker v. Brown, 340 A.2d 566 (Pa. Super. 1975) required Mr. Harris to prove that the oak tree which injured him was (1) defective and (2) that Ms. Felouzis would have discovered that defect had she inspected the tree. In other words, Ms. Felouzis claimed without proof of a defect, Mr. Harris cannot establish a cause of action for negligence.
Elements of a negligence-based cause of action are duty, a breach of that duty, a causal relationship between the breach and the resulting injury, and actual loss. Minnich v. Yost, 817 A.2d 538, 541 (Pa. Super. 2003). Negligence is carelessness; we define it âas the absence of care under the circumstances.â Charlie v. Erie Ins. Exch., 100 A.3d 244, 250 (Pa. Super. 2014). While the existence of a duty is a question of law, whether there has been neglect of such duty is generally for the jury. Id.
In support of its position, the Superior Court cited Brandywine Hundred Realty Co. v. Cotillo, 55 F.2d 231(3d Cir. 1931), wherein strong winds blew a tree from a forest adjacent to a highway onto a car, resulting in a fatality. The tree bore no evidence of decay. The jury found the defendant negligent. On appeal, the 3rd Circuit held âthe question of alleged negligence of the defendant [landowner] was for the jury to pass upon.â Id.
Moreover, the Court considered the Restatement (Second) of Torts, which establishes a landownerâs duty with respect to tree and roadways as follows:
A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from [the landownerâs] failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.
RESTATEMENT (SECOND) OF TORTS § 363(2) at 258. Because the word âdefectâ is absent from the Restatement, the Court concluded Mr. Harris did not need to prove that Ms. Felouzisâ tree was defective.
In response to the dissenting opinion, the Court emphasized that it was not imposing a strict liability standard under the circumstances but rather allowed the decision of negligence to be determined by the jury. Specifically, the Court held it is the jury who determines whether a reasonably prudent owner would have removed the tree or otherwise fixed the condition.
The Superior Courtâs opinion in Harris v. Felouzis, 2025 PA Super 30 (Feb. 10, 2025) can be accessed here.
