Weber, et al. v. Wesleyan College

Negligence - Premises Defect - Fallen Tree - Automobile Accident - Wesleyan College ("Wesleyan") owns a narrow strip of land
between four-lane Forsyth Road (U.S. 41) and a parallel railroad.
This strip of property was across the highway from the Wesleyan's
president's house. Such strip was undeveloped and contained a
large number of trees, primarily loblolly pines.

On February 7, 1995, at approximately 7:45 p.m., Paulette
Weber was killed when one of the pine trees fell across Forsyth
Road in front of her car, causing her to crash into the tree
blocking the roadway. The tree was 94 feet tall and was
approximately 47 feet from the edge of the road within the strip.
The tree was 18 inches in diameter. Heavy vines and undergrowth
surrounded the tree, and vines grew up the tree. In the general
area where the tree fell, the trees looked blighted and there
were 15 to 25 trees that were leaning, looked dead, or had
fallen. Prior to the incident, laypeople had observed dead trees
in this area of the strip, and the bad condition of the trees
should have been readily apparent to a non-expert. Not far from
the fallen tree, a tree leaned out over the road. Many trees were
covered with heavy vines that robbed moisture and blocked
sunlight, so that the tops of the trees had little more than a
small green fringe on them. Some 70 to 85 percent of the canopies
of trees surrounding the fallen tree were dead. Hartel,
Wesleyan's expert, counted 19 dead trees in the area of the
fallen tree.

On the railroad side of the fallen tree in question was a
four foot long rotten cavity two feet above the base of the tree.
Such rotten cavity had existed between ten and fifteen years.
Tree fungus had entered the point of damage and traveled in all
directions, including the root system. The tree was nearly dead,
and root rot had destroyed the root system. Root rot caused the
tree to fall; however, expert opinion differed as to whether the
rotten cavity caused the root rot. The tree was down an
embankment and vines covered the cavity; the cavity was not
observable from the road because of its location. The cavity was
observable from the railroad side, which could be reached by
crossing 50 feet from the roadway. A layperson in a walk-by could
see the cavity in the winter or when leaves were not on the
vines. The root rot was not observable externally. The man who
cut up the tree testified that trees next to the fallen tree
looked dead from the base to the top, sawed like they were
rotten, and had little bark on them. The expert testimony was
that the tree was actually alive and had few green needles at the
top, although it was not healthy, but other witnesses testified
that they saw no green needles on or around the tree. The tree
crown growth was between a five and ten percent ratio
to the entire height of the tree. A healthy loblolly pine should
have a green leafy crown between 25 and 30 percent of the tree.
The tree was between 35 to 40 years old, which was approximately
half way through its normal life-span. The tree was in a state of
decline. A cross-section of the trunk showed growth in each year
of its life; however, in recent years the growth rings had become
smaller and smaller, almost merging, which indicated that the
tree was not healthy. From the growth rings, it was apparent that
the tree had been damaged in its tenth year of growth, which
moderated the growth over the next eight years, and in the last
nineteen years of life, the growth rings showed a decline; the
last six years of growth rings showed an advanced state of
decline. According to the Weselyan expert, the bark was tight,
intact, and free from pine beetle infestation according to the
Weselyan expert, but lay witnesses stated that the bark was dead,
brown looking, and bug eaten. The core, where the city workers
cut it from the road, appeared rotten.

Starley, a motorist who first collided with the tree, did
not consider the weather "real windy," although it made the trees
move, but not "bad weather" or "blowing real hard." Meteorologist
Laing reviewed 25 sites across the state and Bibb County on the
date in question and found maximum gusts of wind no greater than
35-40 miles per hour; this was a brisk wind. From his experience,
it took winds in excess of 60 miles per hour to knock over a
healthy tree; and winds in excess of 58 miles per hour are
classed as a "severe thunderstorm." Winds of 35-40 miles per hour
were not uncommon throughout Georgia in February.

Wesleyan occupied a 200 acre campus, and part of the campus
was heavily wooded. The strip where the tree fell was away from
the main campus. The ground crew took down trees as necessary;
however, after a piece of tree removal equipment failed, Wesleyan
used an outside tree service.

William Singleton was the leader of the grounds crew and
reported to Don Boughton, Physical Plant Director.

While inspecting the strip before the incident, Singleton
observed a dead and leaning tree in the general area of the
fallen tree and reported this and a whole bunch of dead and dying
trees in the area of the fallen tree to Boughton. Boughton asked
if Singleton could cut down the trees, but Singleton told him
that traffic would have to be stopped to take down the trees, so
it was not done. Boughton testified that Singleton's report came
after the incident. However, Singleton could not identify the
fallen tree as the dead and leaning tree. An expert witness
testified in his opinion that the tree that fell had not been
leaning prior to the fall. A defense expert witness stated that
in his opinion he would not have advised the cutting down of the
tree prior to its fall.

On February 7, 1997, Thomas Weber, individually and as next
of kin, surviving spouse, and administrator of the estate of
Paulette
Weber, deceased, brought suit against Wesleyan in the
Bibb Superior Court.

Plaintiff's verdict for substantial undisclosed amount.

Unknown

Unknown

Affirmed case A99A0419 and reversed case A99A0459 by the Georgia Court of Appeals. See: 238 Ga. App. 90 (1999). Reported by kkm.