No. 2--08--0995 Filed: 11-13-09

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ DANIEL ECKBURG, Indiv. and as ) Appeal from the Circuit Court Special Adm'r of

the Estat e of Kris ti ) of Og le Co un ty. Eckburg, Deceased, ) ) Plaintiff -Appella nt, )

) v. ) No. 08--L--1 ) PRESBYTERY OF BLACKHAWK OF ) THE PRESBYTERIAN CHURCH (USA), ) Honorab le ) Stephen C. Pemberton, Defendant-Appellee. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE BOWMAN de livered

the opinion of the c ourt: Plaintiff, Daniel E ckburg , individua ll y a nd as s pecial a

dministra tor of the estate o f Kristi Eckbu rg, appeals

the Septe

mber 24, 2 008, tria

l c ourt orde r dismissin

g his com

plaint ag ainst defenda nt, Presb yte

ry of Blackhawk of

the Presbyte

rian Chur ch (USA) . Plaintiff

's complaint pleade d negligence, wrongful death, a nd surviva

l actions a gainst defendant after a tragic motorcycle a ccident that occurred on August 11, 2007. We reverse and remand. I. BACKGROUND On March 18, 2008, plaintiff filed his complaint alleging the following facts and claims

. Defendant

owned the real property adjoining the 2000 block of Illinois Rou te 2 in R ockvale Township inOgle County. On tha

t property, def

endant operated a

four-se ason con ferenc e, retr eat, and camping center. On Augu st 11, 2007 , the prop erty was densely wooded and had a number ofNo. 2--08--0995

-2-

rotted and otherwise defective trees immediately adjacent to Illinois Rout e 2. The rotted and defective trees were on the easement for I llinois Route 2 and were located within several feet of the road's edge. Illinois Route 2 was a he avily traveled rural road that connected

the cities of Rockford, Byron, Oregon, and Dixon . Residen tial are as and sub divisions su rrounde d defend

ant's pr operty to the north, south, and west, and Illinois Route 2 was the primary means of travel for their

residen ts. The complaint further alleged that defenda nt received actual notice that there were trees on the propert

y a djoining Illinois Route

2 that were in a defective or unsound condition and that posed a threat of

falling onto the roadway . Gordon Bell provided such notice to defendant by telephone and stated tha t there w as at lea st one "p

recar iously perched" tree along

Illinois Route 2 that presented

a danger of falli ng ont o the r oadway. Bel l call ed defe ndant 's office with this information one week prior to the Augus t 11, 2007, accide nt. Plaintiff

allege d that def

endant owed a duty

to him and to the general public to exercise reasonable care in the inspection

and maintenance of the trees upon the property immediately

adjoining Illinois Route 2. Further, defendant owed a duty to plaintiff a

nd the general public to respond upon rece ipt of a co mplaint of trees that were defective and pose d a danger. OnAugust 11, 20 07, pl ainti ff was d rivin g a motorcy cle with h is wife, Kristi, as his passenger south on Illinois Route 2, including the portion of the road that bo rd er ed de fe nd an t' s p ro pe rt y. While plaintiff was dr ivin g, a large portion of a tree located on defendant's property

fell onto the roadway and st ruc k pl ain ti ff' s m ot orc ycle , ca usi ng s eve re i nj uri es t o pl ain ti ff a nd K ris ti 's d eat h. In cou nt I, plaintiff alleged that defendant was neg ligent because it: (1) failed to reasonably inspec

t the trees on the property whe

n it knew or should have known that some o f the tre es prese nted a ri sk to motori sts

onthe roadway ; (2) failed to inspect the trees for indications of defec tive or unsound conditions thatNo. 2--08--0995

-3-

could result in trees falling onto the roadway ; (3) failed to prune, trim, and removedefective limbs

or trees that were located on the property immediately adjace

ntto the road

way ; (4) fai led to main

tain the property fr

ee from unreasonable risks to motorists; (5) disregar ded notice of defective trees on the propert

y immediately

adjace nt to the ro adway ; and (6)failed to properl y inspect or maintain trees uponthe prope

rty after r eceivin g notice of the da

ngero us conditi ons of tre es loca ted near the roadwa y. A s a resul

t of defe ndant' s neglig ence, p laintiff sustaine d severe

and permanent inj uries. Incount I I, pla intiff alleg ed the sa

me negl igent a

cts to supp ort the wr

ongful d eath cla im pursuant to the Wrongful Death Act (740 I LCS 180/1 et seq. (West 2006)). In count I II , plaintiff alleged the same negligent acts to sustain the survival action pursuant to section 27--6 of the Proba te Act of 1975 (755 ILCS 5/27--6 (West 2006)). Inan answer to defe ndant' s interro gatory , plaintif f stated t hat it was "a lar ge tre e" that

fell onto Illinois Route 2 immediately in front of plaintiff's motorcy cle. Plaintiff identified the location of the tre e, befor

e it fell, as follow s: "Before the tree at issue f ell upon I llinois Route 2, the distance from the base of the tree to the west edge of the road surfa ce wa s 14 feet, 3 inches; the tree was 1749 feet, 9 inches fromthe center of Mud Creek Road, traveling south; additionally, the tree was 1454 feet, 7 inches from the center of the bridg e on Route 2 that goes over Mud Creek." OnJune 12, 200 8, defen

dant file d a motion to

dismiss pursuantto section 2--619 of the Code of Civil Procedure (Code) (735 IL CS 5/2--619 (West 2008)). Defendant argued that an affirmative matter barred plaintiff's claims as a matter of la w and, thus, dismissal was warranted. Def endan t argued that Illinois follows section 363 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 363, at 25 8 (1965)) , which pr ovides:No. 2--08--0995

-4- "§363. Natural Conditions (1 ) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other

transfe ror, is lia ble for physical ha

rm caused to others outside of the land by a na

tural condition of the land. (2) A possess or of lan

d in an urban area is subject to liability to persons using

a public hig

hway for phy sical ha rm result ing from his failu

re to exer cise re asonable

care to prevent an unreasonable risk of harm ar ising from the condition of trees on the land near the highway ." Defendant

argue d that bec ause its land was not in an urban area, d efenda nt cannot be held liablefor plain tiff's inju ries a s a mat ter of law. D efenda nt's land encompassed 360 acres of wooded, elevated, and undeveloped property in an a

rea between the rural communities of By ronand Oregon. Defendant

submitted an aerial photograph of the land to dispute pl a inti ff's cl aim t hat de fendan t's propert y is bordered by r

esidential areas and subdivisions to the north, south, and west. Defendant also attached an affidavit of Reverend John E. Rickard, the General Presby tery and ove

rall manager of the prope

rty . Revere

nd Rickar d attest ed to th e fact that the property consisted of 360 acres of heavily wooded land with cliff

s, sharp e levation changes, and natural g rowth of trees. He further attested to the accuracy

of a photograph of the downed tree and the ae rial photograph of the area. Insupport of its position , defendant ci ted Mahurin v. Lockhart , 71 Ill. App. 3d 691 ( 1979), and Hammond

v. SBC Communications, Inc. , 365 Ill. App. 3d 879 (2006), overruled on other grounds , Vision Point Sale, Inc. v. Haas , 226 Ill. 2d 334, 348-49 (2007). Plaintiff argue d that Mahurin

was distinguishable from the facts here but

noted that in dicta , the Mahurin

court expa

nded section 363' s ru le by holding that liability depended upon the actualNo. 2--08--0995

-5-

facts of the case and

would not necessarily e

nd at the owner's property line. Plaintiff argued that the actual facts of this case supported the imposition o f a duty on defen dant to ma

intain the trees on its property borde

ring the major roadway

and that the court should not adopt different rules for urban areas and rural

areas without considering all of the facts. Plaintiff was not arguing that defendant

was required to inspect the trees on all 360 ac res but on ly th ose tree s that wer

e close to th e r oa dw ay. Plaintiff further argue d that Hammond

was inapplicable because it involved whether a u t ility company had a duty to maintain tree s on the land on which it possessed a utility easeme nt. Becau se Hammond

did not invo lve the a

ctual pr operty owner' s duty

to maintai

nthe tree s, plaintiff argued that it did not apply to the facts of this case and that the court's commentary

regarding section 363 was merely dicta . Finally, plaintiff ar gued that this case was different

from the cited cases because her e defendant had received actual notice of the pre sen ce of defective trees on its property . In support of his position, plaintiff cited Ray v. Cock Rob in, Inc. , 57 Ill. 2d 19 (1974) (finding that dire cted verdict was improper where the plaintiff presented some e vidence that

the defendant had notice that its placeme

nt of picn ic tables near ro adway

posed a d anger to diners because of the pot

ential tha t a car may veer off the road). OnSeptember 24, 2008, the trial court issued its order, stating the f ollowin g. The court believed that adop ting the

strict ru le of section 3 63 was considere d overly simplistic by ma

ny c ourts, given the inter mediate pattern s of land u se that now exist in this country. The c ourt then ruled that "[a]s to notice, the Plaintiff's pleadings are insufficie nt to allege that the Defendant had either actual

or constructive no t ice of a defective condition in the tree in question." The court stated that plain tiff's allega

tion that de fendant

had actu al notice that t here wer e dangerous trees near the highway was insuf

ficient t o alleg e that d efendant

had notice that the actual tree in question wasNo. 2--08--0995

-6-

defective. Plaint iff further, according to the court, did not plead tha t an inspection would have disclosed that this pa

rtic ular tree po sed a haza rd to motor

ists. The c ourt note d that "[w ]hile this finding may place

a heavy burden on

the Plainti ff, to rule otherwise would be to place an onerous and inappropriate d

uty of insp ection on the Defendant." Finally , the court stated that to impose a duty to inspect the trees surrounding a roadway

would "truly under

mine the rationale of protecting rural landowne

rs from onerous obligations. Many state hig hways pass throug

h densely wooded

areas. Additiona

lly t he issue o f how much traffi c is requ ired to tr igge r the duty

is not eas ily determinable." Thus, the co urt gra nted d efenda nt's secti on 2-- 619 m otio n, fin ding t hat th e plead ings and affirmative matters established that th e accid ent occu rred in a rural area, that defenda

nt had no actual or constructive notice of the defective condition of the tree in question, and that, absent notice, defendant is immune from liability as stated in section 363 of t he Restatement(Second

) of Tort s. Plaintiff timely appealed. II. AN ALYS IS The purpose of a section

2--619 mo tion to dismiss is to d ispose of issues of law and e asily proved issues of fact at the start of litigation. Van Meter v. Darien Park District , 207 Ill. 2d 359, 367 (2003). The Code permits involuntary dismissal where the c laim asserted against thedefenda nt is barred by some affir

mative matter avoiding the legal eff ect of or defeating the claim. 735 IL CS 5/2-- 619(a)(9) (West 2008 ); Van Meter , 207 Ill. 2d at 367. An affirmative matter under section 2--619 is something in the nature of a defense that negates the cause of action completely. Van Meter , 207 Ill. 2d at 367. The moving party admits the legal sufficiency of the complaint , but asse rts an affirma tiv e defense o r other matter to defeat the plaintiff's cla im. Van Meter , 207 Ill. 2d at 367. When a court rules on a section 2--6 19 motion to dismiss, it must interpret all pleadings andNo. 2--08--0995

-7-

supporting documents in the light most favorable to the nonmoving party

. Van Meter , 207 Ill. 2d at 367. We review de novo a trial c ourt's g rant of a section 2 --619 mot

ion to dismis s . Van Meter , 207 Ill. 2d at 367. Onappeal, plainti ff make s m any of the sa

me arg uments he

made in hi s respons e to defend a nt's motion to dismiss. According to plaintiff, the court should not mindlessly adopt the strict rule of section 363 when various factual scenarios make the enforcement of such a rule unfair. Here, while the area was rural, the prese nce of a heavily

traveled highway

created the need

to impose

ondefendant the same duty as that on a de fendant in an urban area, because the r isk of harm to the travelingpublic was similar and the burden to inspect the trees bordering the roa dway wa s not

onerous. Further, plaintiff argues that the fa ct that defendant was given actual noticeof the presence of defective trees near the roa dway g ave reason

to impose aduty on defenda nt. Plaintiff argues that the trial court was incorrect in finding that there was no actual or constructive notice. The existen ce of a duty

is a question of law for the court to decide. Adams v. Northe r n Illinois Gas Co. , 211 Ill. 2d 32, 43-44 (2004). There can be no recov ery

in tort for neglig ence un

less the defendant has breached a duty owed to the plaintiff. Adams , 211 I ll. 2d at 44. Duty is a question of whether the defendant and the plaintiff stood in such a re lationship to one ano ther that the law imposed upon the d

efenda nt an oblig ation of r

easonab le conduc

t for the b enefit

of the plaintiff. Adams , 211 Ill. 2d at 44. I n determining whether a duty exists, a court looks to certain relevant factor s, inclu ding: (1) the reasonable forseeability that the defendant's conduct may injure another; (2) the likelihood

of an injury occ

urring; (3) the magnitude of the burden of guarding against such in ju ry; and (4) the consequences of placing that burden on the defendant. Adams , 211 Ill. 2d at 44. The question b efore t

his court is whether

a rural landowne

r may be liable to persons u sing a pu

blicNo. 2--08--0995

-8-

highway where phy sical harm resulted from the l andowne

r's fa ilure to ma

intain tre es on the property located near the public highway . Even if we decide that no such duty exists genera lly, we consider whether a duty arises whe

n the landowner is put on notice that the trees have an actual defec t or a potentia lly dange rous cond ition. As no

case in I llinois i s directl

y on point, th

is is a cas e of firs t impression. Inthe abse

nce of I llinois law , we ofte

n deem p e rsuasive secondary sources, such as the Restatement

(Second) of Torts. See Randall v. Lemke , 311 Ill. App. 3d 848, 851 (2000). Plaintiff urges this court

not to follow section

363 in a dr

aconian fashion, while defendant argues that section 363 should apply, because imposing a duty on rura

l landowners to inspect

and maintain trees on their land would be overly bur

densome. Defend

ant further arg

ues that if this court departed from section 363, we would be departing from a traditional rule of law. We first pointout to defendant that section 363 has never been adopted by our supreme court and acc ordingl

y is notbinding on this court. See In re Marriage of Chrobak , 349 Ill. App. 3d 894, 898 (2 00 4) . It ma y pr ov id e t hi s c ou rt on ly w it h g ui da nc e, as ma y an y ot he r s ec on da ry s ource . Chrobak , 349 Ill. App. 3d at 898. The explanatory comments in section 363 provid e some ra tionale for the urban landowner rule. The explana tor y c omments ac

knowledg e that tre es pose th reats to public highway s and that in an urban area, where traffic is frequent, land

is less hea

vily wooded, and acreage is small, reasonable care for travele rs may requir

e the landowner to inspe ct all tree s. Restatement

(Second ) of Tort s §363, Expla

natory Notes, Com

ment e , at 259 (1965). T

he comme

nts further state tha t "it will at least require him to take reasonable steps to prevent har m when he i s in fact aware of the dangerous condition of the tree." Restatement (Second) of Tor ts §363, Explanatory Notes, Comment e , at 259 (1965). H owever , the authors alsoprovided a caveat, stating that "[t]heNo. 2--08--0995

-9-

Inst it ute expresses no opinion as to whether the rule stated in Subsection (2) may not apply to the possessor of land in a rural area." Restatement (Sec ond) of T orts §363, Explanator y N otes, Cav eat, at 258 (1965). Thus, section 363 provides little guidanceon our issue of whether the duty imposed

onanurban landowner may extend to the rural la

ndowner , and it doe s not addr ess how no tice woul d affect the duty

of a rural landowner. Both parties cite to Mahurin

insupport of

their opposing positions. In Mahurin , the plaintiff sued his neighbor for f

ailing to prune a tree on her proper ty, after a dead branch fell onto the plain tiff's property a

nd struck the plaintiff. Mahurin , 71 Ill. App. 3d at 69 1. The plaintiff had warned the de fendan t that the tr ee's condition posed a danger. Mahurin , 71 Ill. App. 3d at 691. The defendant moved to dismiss the plaintiff's complaint, alleging that a landowne r is not liable to others outside the land for physica l harm caused by

a natural condition. The defendant also alleg ed that the plaintiff was contributorily neg ligent for standing under the tree knowing of its dangerous condition. Mahurin , 71 Ill . App. 3d a t 692. The

trial cou rt denie d the def

endant' s motion to di s miss an d certified the question of whether a landow ner in a r esi dential a

rea owe d to a person outside his propert y a duty to remedy

some defective or unsound condition of a tre e on his land, when the tree and its condition were of a purely natural origin. Mahurin , 71 Ill. App. 3d at 692. I n discuss ing section363, the appellate court noted that the traditional rule o f nonliab ility develope d at a time when land was mostly unsettled and uncultivated. Mahurin , 71 Ill. App. 3d at 692. The court noted that "[w]hile there ar

e many reasons to continue the traditional rule in regions that are large ly r ural, there is little or no reason to apply it in urban and other developed areas." Mahurin , 71 Ill. App. 3d at 693. F or an urb an prope rty owner, t he burde n to inspect a

smallproperty is not so g reat that he should not owe a duty to take reasonable precautions ag ainst dangerous natural conditions. Mahurin ,No. 2--08--0995

-10-

71 Ill. App. 3d at 693. Theref ore, the court he ld

that a landowner in a residential or urban are a owed to others outside hi s land a du ty to exercise reasona ble car e to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, inclu ding conditions of purely natura l origin. Mahurin , 71 Ill. App. 3d at 693. The facts of Mahurin

are distinguishable from the facts of this case. I n Mahurin

th e lan d involved was residential whereas here the la nd i n questi on is rural. In Mahurin the tree posed a danger to a residential neighbor wherea s here the tree s involved posed a d anger to drivers on a main highway . Further, in Mahurin there was one identified tree where as here there are many trees that line the roadway . Thus, we find Mahurin 's application of the urban landowne

r rule to a residential landowner of little impact to the case at bar. Defendant

also relies on Hammond . In Hammond , 365 Ill. App. 3d at 882, theplaintiff was seriously injured in a moto r vehi cle acc ident invo lvin g a fallen tr ee. The plaintiff sued the d

efenda nt, contendingthat the defendant, a utility c ompany, negligently fa iled to clear

the tree from land on whichthe defendant held an easement. Hammond , 365 Ill. App. 3d at 882. The plaintiff was driving south on Ill inois Route

47 in Plato T ownship when a tree that stood on the southwest corner of the intersec tion of Rout

e 47 and Ba

hr Road f ell acro ss Route47 and caused permanent injuries to the plaintiff when his vehicle collided with it. Hammond , 365 Ill. App. 3d at 883. The tree was within 35 to 40 feet of the defen dant's u tili ty box that was located on property owned by Elmer H artje. Hammond , 365 Ill. App. 3d at 883. The court, in determining that the defendant

did not owe a duty to the plaintiff, relied on the f actthat the defendant's easement provided only that the defendant could operate and maintain utility equipment on the property. Hammond , 365 Ill. App. 3d at 886-87. The tree in question was not interfering with the defendant's equipment, and thus the defenda nt hadNo. 2--08--0995

-11-

no duty to clear the tr

ee from the property. Hammond , 365 I ll. App. 3d at 888. Th e plaintif

f also argued that the defendant owed a duty to clear the tree, as a possessor of land, pursua nt to section 363 of the Restatement (Second) of Torts. Hammond , 365 Ill. App. 3d at 889. The court stated that because the land was rural, ne ith er section 363's exception for urban landowners nor Mahurin 's extension to residential landowners applied to its facts. Hammond , 365 Ill. App. 3d at 890. While Hammond

rejected the extension of section 363 to residential landowners, it is unclear whether that issue was fully arg

ued before the court, as the court did not provide much analy sis on the issue. Regardless , the cas e is distinguis hable from this case because in Hammond , the actual propert y owner was not

a party to the law suit and there was no information regarding whether the propert y owner ha d notice o f the tre e's condition. Th us, we dis agree

with defe ndant tha t Hammond would prohibit us from imposing a duty on a r ural landowner. Other jurisdict ions have consider ed the iss ue we fa ce today , and we f

in d th eir analyse s persuasive. In Miles v. Christensen , 724 N.E .2d 643, 64 4-45 (I nd. App. 2 000), the

defenda nts owned property a

butting the south side of State Road 124. The dec edent wa s riding a motorcyc le east onRoad 124 when a dead elm tree from the defe ndants' property

fell and killed him. Miles , 724 N.E.2d at 645. The tree had been dead for years a nd was visible from

th e p er im et er of

th e p ro pe rt y. Miles , 724 N.E.2d at 645. The defendants filed a motion for summary judgment, claimingthat they owed no duty of c are to th e deced ent. The trial cou rt denie d that motion, and the defenda nts appealed. In the interlocutory appeal, the appellat e court first held that the determination of a lando wner's duty

did not hing e solely

upon the " urban/r

ural" d istinction but i nvolved a more sophisticated

analy sis of the duty question, requiring consideration of factors such as traffic pa tterns and land use in the relevant area. Miles , 724 N.E.2d at 646 -47, c itin g Valinet v. Eskew , 574 N.E.2dNo. 2--08--0995

-12-

283 (Ind. 1991). Whether land could be c lassified as urban or rural wa s not the on ly f actor in determining a landowner's duty of care as to natural conditions on the land. Miles , 724 N.E.2d at 646. Second, the court held that public policy considerations fav ored recognizing that one who owned land, whether urban or rural, may owe a duty

of reasonable care as to natura l land conditions that threatened outsiders. Miles , 724 N.E.2d at 646. The court observed that motor vehicle travel

was common and frequent in modern society and that a significant

portion of

the public was exposed to da ng er s p os ed by n at ur al co nd it io ns of pr op er ty. Mil es , 724 N.E.2d at 646. "As such, sound public policy dictates that ' in light of o ur increasingly mobile society, highwa

ys must be kept free fromobstructi ons and haz ards.' " Miles , 724 N.E.2d at 646 , quot ing Fritz v. Parkison , 397 N.W.2d 714, 715 (Iowa 1986). Thus, I ndiana promulgated a rule that any landowne r may, u

nder ce rtain circumst ances, owe a duty of re asonable care as to those who, while outside of the land, suffer harm from the land's natural conditions. Under its facts, the court

found that the defenda

nts owed a

duty of reas onable c are des

pite their property be ing classified as "rural," because

the property a

butted a main roadway

and was not inan area where reg

ular public visitation would be unexpected. Miles , 724 N.E.2d at 647. A breach of that duty wasa question of fact, and therefore the de nial of the defendants' motion for summary judgment was appropriate. Miles , 724 N.E.2d at 647; see also Valinet , 574 N.E.2d at 285 (holding th at whether land is in a

n area o f suffic ient popul ation den sity to invoke a

duty of care require s a factual consideration of such factors as land use and tra ffic patterns and determining that wh et her

a lando wner exe

rcised r easonab le care

will requ ire the f act find er to wei gh the se

riousnes s of th e danger agains t the eas e of pre venting it); May v. Geor ge , 910 N.E.2d818 (Ind. App. 2009) (considering

several factors to conclude that the p laintiff

failed to establish traffic patterns and landNo. 2--08--0995

-13-

use that w arrant ed imp osin g a duty and failed to esta

blish that the defendant had noti ce of th e tree's condition). Jurisdictions be yond I

ndiana have similarly e

mployed a traditional neg

ligence analysis rather thanthe simplistic "urban/rural" distinction found in section 363. See M cKee v. Ulrey , No. 3:2007CV00056, slip op. at 5-7 (N.D . W.Va. 2007) (before determining whether the rural landowner hada ny duty, allowing the plaintiff to conduct discovery on factors such as character of the l and , character of the highway

upon which the tree fell, exact location of thetree, posture of the tree prior to its fall, frequency

with which landowner passed by the tree, an d whet her landowner had any appreciation

of tree 's poten

tial dang er); Hensley

v. Montg omery

County , 25 Md. App. 361, 368-69, 334 A.2d 542, 546-47 (1975) (although refusing to extend the urban duty to a rural landow

ner, the court determined the rural landowner owed no duty by considering the size and type of the roa d, the

use of th e r oad, the amount of traffic on the road, the land use a round the road, and whether the defend ant had notic e of the d

anger ous tree ); Heckert v. Patrick , 15 Ohio St. 3d 402, 405-06, 4 7 3 N.E.2d 1204, 1208 ( 1984) (when d eterm inin g whether the r ural landowner owed a dut y of reasona ble care, court considered

factors such

as whether the defendant had any actual or constructive notice of dangerous condition, th e l oc at io n o f t he hi gh wa y, its size and type, and the number of tra velers

on the roadwa

y) ; Taylor v. Olsen , 282 Or. 343, 348, 578 P.2d 779, 782 (1978) (holding that th e question of the landowner's attention to the condition of his roadside trees under a gene ral standard of reasonable care is to b e decide d as a question of fact and cannot be determined simply by classifying

land as either urban or rural). We agree with the tr

adi tional negligence analy sis used by I

ndiana and the various other jurisdictions rather than

an analysis base d onthe overly simplistic "urba n/rural" distinction. GivenNo. 2--08--0995

1 These fa ctors ar e not exclu sive, and

the trial court sho uld consid

er all re levant f

actors. -14- the increased travel on well-developed hi gh wa ys across our country side, we do not believe that the law should

be applied in such a way

that provides relief for

a plaintiff traveling on a town road and

no relief to a plai ntif

f traveling on a major highway , simply because the town r oad is in an area deemed "urban" and the highwa

y is in one deemed " rural." The more reasona ble appro ach is to follow a traditi onal negligenc e analy sis, which tak

es into consideration the various factors of each case, such as the size and type of the road, the traffic patterns of the r oad, the nature of the surrounding land, the condition and location of the tree, th e nature

of the da nger p osed to tr

aveler s, and the burde

n of inspe cting a

nd removi

ng the d anger . Here, the part

ies should

be allowe d to proceed with discovery

to obtain more infor

mation re gardin

g these factors so that the trial court may fully consider whether defendant had

a duty to exercise re asonable care in maintaining the trees tha t abutted Illinois Route 2. Becau se the ca se was sti ll at the pl eading stage, the trial

court (a nd this court) had no information regardi ng how many people visited def endant's property , how many motoristsused the road in that area, and whether a reasonable inspection would have ide ntified the tree as posing

a dang er before it fel l. 1 Therefore, the t rial co urt erred in finding that the rural distinction was dispositive of plaintiff's case and er red in dismissing plaintiff's complaint without adequa te consideration of the relevant fac tors in determin ing whe ther def endant owed a duty

to plaintiff. Even if we determined that a rural landowner g enerally did not have a du ty t o exercis e

reasona ble care to prevent an unreasonable risk of h arm a

rising from the condition of his trees on his la nd ne ar a h ig hw ay, no ti ce of a d an ge ro us na tu ra l c on di ti on on hi s l an d m ay g iv e r is e t o t he du ty. Here, we find that plaintiff sufficiently pleaded that defendant had ac tual notic e of the dangerousNo. 2--08--0995

-15-

condition. Plaintiff alleged in his complaint that defendant was warne d by a witness named Gordon Bell that the trees in the a

rea where the ac cident oc curred were da maged a nd posed a

dange r to motorists. One tree was particularly precariously

perched in a dangerous position. The trial court found that plain tiff's a llegat ion faile d to consti

tute notic e becau se it did no t addres s the specific tree that fell. The trial court

also determined that plaintiff did not plead that an inspection would have disclosed that this particular tree posed a haza rd. W e find that t he tri al cou rt's concer ns are va lid in that vague warni ngs con cernin g large area s of wooded land would place an onerous burden of inspectiononlandowners. However, the trial court was ruling only upon a

section 2--619 motion, whichdoes not concern the sufficiency of the ple adings b

ut only whether there exists a

valid def ense that would defeat the plaintiff's complaint as a matter of la w. Here, plaintiff certainly pleaded that defendant was warned by

Bell about the danger

o us condition of the trees near the area whe re the accident occurred, failed

to inspec t the tree s on his pro perty, failed

to prune the

trees immediately adjacent to the roadway , failed to inspect trees after being put on notice, and disregarded notice that the trees posed a hazard. When considering a sec tion 2--619 attack, the trial court is to take the plain tiff's allegations as true and in the light most favorable to the plaintiff. Whether the notice p r ovided by B el l w as ad eq ua te to pl ac e d ef en da nt on no ti ce th at fu rt he r a ct io n w as ne ce ss ar y, whether an inspection would have discovered the dange r, and whet

her def endant br eached a duty to inspect the tree s after r

eceivin g notice are que stions o f fact that the trial court should not have decided at this stage. Thus, at this stage in the proceeding s, the trial court err ed in fi nding that plaintiff 's alle gation o f notice

was insuf

ficient. III. CONCL

USIONNo. 2--08--0995

-16-

Based on the foregoing reasons, we find that the trial court erred in finding the rura l classification

of defendant's property

dispositive of plainti ff's claims and further erre d in determining that plaintiff's allegation of notice was insuffic ient. Accor dingly, we r everse the judgment of the circuit co ur t o f O gl e C ou nt y and re mand the c ause for further procee dings co

nsistent with this opinion. Reversed and remanded. HUTCHINSON and BU

RKE, JJ., concur.