Appeals Court sides with Town of Matthews in dispute over fatal tree fall | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The Town of Matthews will not face legal liability in the case of a fatal tree fall during a 2018 winter storm. A unanimous N.C. Court of Appeals panel ruled in favor of the town Tuesday.

    "The Town of Matthews is like many suburbs in our growing State. Though new businesses and homes have appeared in recent years, the natural charm of the Town is preserved in its several parks and the canopy of trees arching its streets," wrote Judge April Wood for the unanimous court. "East John Street is one such street where towering oaks bow to the procession of traffic below. A winter storm in late 2018, however, disrupted the tranquility."

    "Paul and Dianne Ladd drove through this storm and down East John Street when a tree fell atop them - killing Mr. Ladd and injuring Mrs. Ladd," Wood wrote.

    Dianne Ladd and her husband's estate sued the tree's owners in 2019 for wrongful death, negligence, and negligent infliction of emotional distress, according to Wood's opinion.

    The affected property owners, Thomas and Mary Funderburk, later cross-sued the town. The Funderburks argued that Matthews had a duty to protect people on local streets from the danger of a falling tree.

    A trial judge rejected Matthews' motion for summary judgment. A judgment favoring Matthews would have exempted the town from legal action. The Appeals Court ruling reverses the trial court's decision and grants Matthews protection from the Funderburks' complaint.

    The Appeals Court decision relies on a 1974 court precedent dealing with Chapter 160A of the N.C. General Statutes. That chapter deals with cities and towns.

    "[I]n Bowman v. Town of Granite Falls, we held that a potentially dangerous tree on private property and near a street did not create an affirmative duty under Section 160A before the tree fell onto a car," Wood wrote. "The present case aligns more with Bowman. The Section 160A affirmative duty does not require preventative measures for trees on private property which are not already an obstruction. We therefore hold the statute does not apply to the Town's inaction here."

    Appellate judges rejected the argument that Matthews faced a duty to remove the tree before it toppled. "The tree ordinance authorizes the Town to enter private property and cut down trees in specific circumstances," Wood wrote. "Having empowered itself to do a thing does not mean, as in this case, that it must have done that thing. This is true even if the tree was within the Town's zone of control."

    "The Town did not have an affirmative duty under this State's statutes or the Town's own ordinances to preemptively cut down the tree on private property," Wood concluded. "In opting not to take advantage of the authority it had under its tree ordinance, the Town engaged in an exclusively governmental action. We thus hold that the Town is entitled to the defense of governmental immunity."

    Judges Toby Hampson and Jefferson Griffin joined Wood's opinion. Since the ruling was unanimous, the N.C. Supreme Court faces no obligation to take the case if the property owners decide to appeal.