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FORD v. SOUTH CAROLINA DEPT. OF TRANSP.9/29/1997
d not necessarily give rise to a suspicion that the tree is unstable, there were additional circumstances creating an issue of fact as to whether the Department, in the exercise of reasonable care in discharging its duty to maintain its highways in a reasonably safe condition for public travel, should have discovered and remedied the dangerous condition that caused Mr. Ford's death.
As the Department states in its brief, the tree became completely uprooted because of rain over an extended period
Billy Carnes, a Department foreman in charge of the maintenance crew responsible for maintaining part of State Road 185, testified his crew was responsible for removing hazardous trees hanging over the roads. He further testified the Department had a procedure in place for its crews to follow to remove hazardous trees outside the state right-of-way and had followed this procedure both before and after Hurricane Hugo. Documents submitted by the Highway Department indicate Carnes's crew worked on State Road 185 on at least a weekly basis during the period from September 1989 through June 1993. Furthermore, Carnes's crew would cut a tree if it was dead or leaning or if someone complained about it. Carnes further testified it was not a matter of discretion on his part to decide whether or not to remove a tree. Just before the accident, on January 14, 1993, Carnes's crew had been digging a ditch on State Road 185, and less than a week before that, on January 8, 1993, the crew had been patching holes in the road. Carnes further acknowledged the trees along State Road 185 appeared essentially the same as they did in a photograph taken of the accident site on the day of the accident. This photograph showed several trees, both on the right-of-way and on the Carroll property, leaning toward State Road 185.
Olin Kilman Pratt, who had lived in the vicinity of the accident between 1989 and 1993 and travelled State Road 185 daily, testified that during 1992 and 1993 he told the Department road crew about once a month that trees were falling onto the road and were dangerous. He also attempted to discuss the problem with a highway patrolman, who advised Although Pratt never identified the particular tree in this case as a potential hazard, his testimony about his attempts to inform the road crew of the general problems of falling trees in the vicinity is competent evidence of constructive notice to the Department that the tree in question could pose a danger. Cf. City of Phoenix v. Whiting, 457 P.2d 729 (Ariz. Ct. App. 1969) (stating evidence about the condition of adjoining trees had probative value on the issue of notice).
Based on the foregoing, we hold further inquiry into the facts is necessary to determine whether or not the Department, had it adequately performed its duty to the public, would have had notice of the potential hazard and the opportunity to remedy the hazard. Summary judgment for the Department was therefore premature.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
CURETON and CONNOR, JJ., concur.
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