Opn. No.
Background
- Trees located in County highway right of way between highway and homeowner; utility trims tree limbs away from lines causing leaning toward residence; County aware of some decay in trees; question whether County owes duty to neighbor under Highway Law 102/139 or as adjoining landowner; opinion focuses on duty to neighboring homeowner, not liability apportionment among County, utility, and homeowner; primary duty arises to highway users, not to adjacent property owners absent ownership of land and trees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Highway Law create a duty to neighboring homeowners? | Bourcy argues County duty under 102/139 to maintain reasonably safe highways extends to neighbors. | County contends 102/139 protect highway users, not neighbors; duty limited to those within protective orbit. | No duty to neighbor unless County owns the land and trees. |
| When is County liable for trees on highway right of way? | Claim may be liable if dangerous tree existed with notice. | Liability to highway users arises only for those within the highway duty; neighbor liability requires ownership. | County liable to highway users if dangerous with notice, not to neighbor absent ownership. |
| Does ownership interest in right of way determine County duty? | If County owns land and trees, it bears responsibility. | Ownership status governs extent of duty; easement limits County’s liability. | County owes duty to protect if it holds title to land and trees; otherwise no neighbor-focused duty. |
Key Cases Cited
- Lopes v. Rostad, 45 N.Y.2d 617 (1978) (non-delegable duty to maintain roads; applies to trees overhanging road)
- Harris v. Village of East Hills, 41 N.Y.2d 446 (1977) (collateral duty to maintain road; extends to trees overhanging the road)
- Ivancic v. Olmstead, 66 N.Y.2d 349 (1985) (property owner duty to protect adjoining property from dangerous trees)