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FORD v. SOUTH CAROLINA DEPT. OF TRANSP.9/29/1997
C. 282, 356 S.E.2d 123 (Ct. App. 1987), cert. denied, 293 S.C. 406, 360 S.E.2d 824 (1987), this court adopted the rule that a landowner in a residential or urban area has a duty to others outside the property to prevent an unreasonable risk of harm from defective or unsound trees on the premises. Neither this court nor the supreme court, however, has extended this duty to an owner of trees of natural origin growing on rural, undeveloped land. Cf. Byrd v. Melton, 259 S.C. 271, 191 S.E.2d 515 (1972) (upholding summary judgment to a landowner in an action arising from a child's drowning in a natural watercourse on undeveloped property); Cantrell v. Green, 302 S.C. 557, 397 S.E.2d 777 (Ct. App. 1990) (absolving a rural landowner of liability for injuries resulting when a tractor rolled over on a hidden narrow on a plateau). We decline to extend the duty here. See Cantrell, 302 S.C. at 561, 397 S.E.2d at 779 ("`The rule of non-liability for natural conditions remains to a considerable extent a necessity in rural communities, where the burden of inspecting and improving the land is likely to be entirely disproportionate not only to any threatened harm but even to the value of the land itself."') (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 57 at 391 (5th ed. 1984)).
B. Liability of the Department of Transportation
In granting summary judgment to the Department of Transportation, the trial court held Ford failed to present evidence that the Department had actual or constructive notice of the obstruction. In so holding, the trial court emphasized the absence of evidence of disease or decay. In addition, the Department argues the tree fell as the result of an act of God.
Viewing the record in the light most favorable to Ford, however, we find there was sufficient evidence to create an issue of fact as to whether the Department of Transportation would have had constructive, if not actual, notice of the hazard
In South Carolina, the Department of Transportation can be held liable for damages caused by the fall of a tree standing within the limits of or in close proximity to a public highway. Liability depends on whether the Department knew, or in the exercise of reasonable care should have known, that the condition of the tree would make it hazardous to persons or property in the immediate vicinity. Marsh v. South Carolina Dep't of Highways and Pub. Transp., 298 S.C. 420, 380 S.E.2d 867 (Ct. App. 1989). This liability arises from the Department's duty to use reasonable care to keep streets and highways within its control in a reasonably safe condition for public travel. Inabinett v. State Highway Dep't, 196 S.C. 117, 12 S.E.2d 848 (1941). Moreover, even though a landowner is not liable to persons travelling on adjacent highways for harm resulting from natural conditions of the land, the Department has the privilege to enter the land and do what is necessary to remedy the harm resulting from such natural conditions. Restatement (Second) of Torts § 363 comment c (1965); see also § 202 (stating a public officer may enter private land to abate a public nuisance), cited with approval in Inabinett, 196 S.C. at 124, 12 S.E.2d at 851. The Department, therefore, because of its responsibility to the public, had a higher duty of care than did the Carrolls, to discover and remedy potential obstructions, even those obstructions originating on private property.
We agree with Ford that the absence of visible signs of disease or decay on the tree is not dispositive of the question of whether the Department knew or should have known the tree was a potential hazard for travellers along State Road 185. Although a leaning tree with no other signs of abnormalities woul
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