Present: All the Justices

MATTHEW W. CLINE

 OPINION BY

v. Record No. 110650 JUSTICE S. BERNARD GOODWYN

 June 7, 2012

DUNLORA SOUTH, LLC

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY

Paul M. Peatross, Jr., Judge Designate

In this appeal, we consider whether the common law tort

principles of this Commonwealth allow for the recovery of 

personal injury damages sustained due to a tree falling from 

private land onto a vehicle traveling on a public highway.

Background

On February 12, 2010, Matthew W. Cline (Cline) filed an 

action in the Circuit Court of Albemarle County against Dunlora 

South, LLC (Dunlora) and other entities for injuries he 

sustained when a tree fell on his vehicle as he was driving on 

a public highway. The defendants filed demurrers, and 

following briefing, the circuit court heard oral argument. At 

argument, Cline verbally requested and was granted a nonsuit on 

his claims against all defendants except Dunlora. The circuit 

court sustained Dunlora’s demurrer, and it granted Cline leave 

to amend his complaint. 

Cline filed an amended complaint alleging negligence and 

that Dunlora’s conduct constituted a nuisance because 

“Dunlora’s lack of care, inspection, servicing, and/or 
2

maintenance of the subject property and tree was a condition 

that imperiled the safety of the public highway immediately 

adjacent to the property and tree, creating a danger and hazard 

to motorists and/or pedestrians.” Dunlora filed a demurrer. 

After reviewing briefs, the circuit court sustained the

demurrer, without leave to amend. Cline appeals.

Facts

The relevant facts are those alleged in Cline’s amended 

complaint. Cline was driving on Rio Road East near its 

intersection with Pen Park Drive when a tree fell and crushed 

the roof, windshield and hood of the vehicle Cline was driving. 

Cline suffered severe and permanent injuries, including 

fractures of his cervical spine.

The tree was located approximately 15.6 feet from the edge 

of Rio Road East, on property “owned and/or controlled, 

inspected, maintained and/or serviced” by Dunlora. At the time 

of the incident, Rio Road East experienced traffic at a volume 

of 25,000 vehicles per day. The tree, approximately 25 inches 

in diameter, was “dying, dead, and/or rotten” at the time it 

fell, and had been in this condition for a period of “many 

years and exhibited visible signs of decay, which were open, 

visible and/or obvious,” and “[t]he tree’s dead or decaying 

condition was or should have been known by Defendant Dunlora.” 

Also, “Dunlora knew or should have known of the hazards 
3

presented by the dead, dying and/or rotten tree adjacent to the 

public highway.” 

Analysis

Cline argues that the circuit court erred in ruling that 

landowners in Virginia are not liable for personal injuries 

caused by trees that pose an imminent danger or cause actual 

harm to persons using an adjoining highway. He claims that 

this Court’s opinion in Fancher v. Fagella, 274 Va. 549, 650 

S.E.2d 519 (2007), determined that a landowner is liable for 

reasonably foreseeable property damage caused by trees located 

on adjacent property, and that the authorities relied upon by 

this Court in Fancher allow a claim under the facts alleged in 

Cline’s amended complaint. Furthermore, he asserts that 

traditional principles of Virginia tort law support a claim as 

alleged in the amended complaint.1

Dunlora counters that this Court’s ruling in Fancher does 

not allow a cause of action for personal injuries arising from 

a tree falling on a public highway. It asserts that imposition 

of a duty on an owner of lands adjacent to a public highway to 

examine bordering trees would be unreasonable. It also claims 

that it is the responsibility of VDOT to protect travelers on 

 1 Cline’s nuisance claim is based upon Dunlora’s alleged 

conduct, and stands or falls on whether Dunlora’s alleged 

conduct was negligent.
4

public roadways from injuries caused by dangerous 

instrumentalities immediately adjacent to a roadway. 

The legal question presented by a circuit court’s decision 

to sustain a demurrer requires application of a de novo 

standard of review. E.g., Glazebrook v. Board of Supervisors, 

266 Va. 550, 554, 587 S.E.2d 589, 591 (2003). In conducting 

this review, this Court accepts as true the factual allegations 

of the complaint, its attachments, and the reasonable 

inferences that follow, but not the pleader’s legal 

conclusions. E.g., Yuzefovsky v. St. John’s Wood Apts., 261 

Va. 97, 102, 540 S.E.2d 134, 136-37 (2001). Evaluating 

allegations of negligence, this Court determines whether the 

factual allegations are sufficient to establish a duty of care. 

Id. at 106, 540 S.E.2d at 139. “Whether such duty exists is ‘a 

pure question of law.’ ” Id. (quoting Burns v. Johnson, 250 

Va. 41, 45, 458 S.E.2d 448, 451 (1995)).

At common law, a landowner owed no duty to those outside 

the land with respect to natural conditions existing on the 

land, regardless of their dangerous condition. See, e.g., 

Driggers v. Locke, 913 S.W.2d 269, 271-72 (Ark. 1996); Giles v.

Walker, [1890] 24 Q.B.D. 656 (Eng.); W. Page Keeton, et al., 

Prosser & Keeton on Torts 390 (5th ed. 1984).

[T]he courts in Virginia operate under a statutory 

mandate which provides that the common law of England, 

if not repugnant to the principles of the Bill of 
5

Rights or the Virginia Constitution, continues in full 

force and effect within the State, and shall “be the 

rule of decision, except as altered by the General 

Assembly,” Code § [1-200]. But this does not mean 

that common law rules are forever chiseled in stone, 

never changing. The common law is dynamic, evolves to 

meet developing societal problems, and is adaptable to 

society’s requirements at the time of its application 

by the Court.

Williamson v. Old Brogue, Inc., 232 Va. 350, 353, 350 S.E.2d 

621, 623 (1986).

This Court has never recognized that principles of 

ordinary negligence apply to natural conditions on land, but in 

Smith v. Holt, 174 Va. 213, 219, 5 S.E.2d 492, 495 (1939), we

determined that an adjoining landowner had a nuisance cause of 

action if a sensible injury was inflicted by the protrusion of 

roots from a noxious tree or plant on the property of an 

adjoining landowner. The Court also eschewed the English 

common law distinction between natural and cultivated 

vegetation.2

 See id. at 214, 216-17, 5 S.E.2d at 493, 494.

The duty recognized by this Court in Smith is in accord 

with the broad common law maxim: “sic utere tuo ut alienum non 

laedas” – one must so use his own rights as not to infringe 

upon the rights of another. See, e.g., Burwell v. Hobson, 53 

Va. (12 Gratt.) 322, 325 (1855). The principle of sic utere

 2 See Restatement (Second) of Torts §§ 839, 840 

(recognizing a duty to control vegetation encroaching upon 

adjoining land only if such vegetation is “artificial” –

planted or maintained).
6

precludes use of land so as to injure the property of another. 

See, e.g., Smith, 174 Va. at 215-18, 5 S.E.2d at 493-95 (citing 

with approval Mississippi court’s use of that principle as 

rationale for what was adopted as the “Virginia Rule”), 

overruled on other grounds by Fancher, 274 Va. at 555-56, 650 

S.E.2d at 522; Raleigh Court Corp. v. Faucett, 140 Va. 126, 

134, 124 S.E. 433, 435 (1924) (discussing the axiom with 

respect to surface waters).

In Fancher, the Court reexamined the issue of injury 

caused by the encroachment of vegetation onto adjoining 

property, and modified the “Virginia rule” expressed in Smith

in two ways: (1) discarding the subjective requirement of 

“noxious” nature, and (2) imposing a limited duty on owners of 

adjoining residential lots to protect against actual or 

imminent injury to property caused by intruding branches and 

roots. 274 Va. at 555-56, 650 S.E.2d at 522.

Fancher concerned a sweet gum tree that was allegedly 

causing structural damage to an adjacent townhome property 

through its root system and overhanging branches. 274 Va. at 

552, 650 S.E.2d at 520. Upon considering the approaches of 

various other jurisdictions to determine whether a nuisance 

exists and a right of action arises when vegetation encroaches 

across property lines, as well as the “Virginia Rule” stated in
7

Smith, we adopted the Hawaii approach,3 as expressed by the 

Supreme Court of Tennessee: “ ‘[E]ncroaching trees and plants 

may be regarded as a nuisance when they cause actual harm or 

pose an imminent danger of actual harm to adjoining 

property.’ ” Id. at 556, 650 S.E.2d at 522 (quoting Lane v. 

W.J. Curry & Sons, 92 S.W.3d 355, 364 (Tenn. 2002)).

In Fancher, this Court articulated a rule allowing relief 

where trees encroaching onto the land of another constitute a 

nuisance, and held that trees encroaching upon the property of 

another are a nuisance where they cause actual harm or the 

imminent danger of actual harm. 274 Va. at 555-56, 650 S.E.2d 

at 522. Fancher therefore recognized that a trial court must 

determine whether circumstances are sufficient to “impose a 

duty on the owner of a tree to protect a neighbor's land from 

damage caused by its intruding branches and roots.” Id. at 

556-57, 650 S.E.2d at 523.4

Cline asserts that the principles stated in Fancher, 

logically extended, dictate finding the existence of a duty in 

this case. We disagree. The rule expressed in Fancher, 

 3 This Court overruled the “Virginia Rule” stated in Smith 

v. Holt, “insofar as it condition[ed] a right of action upon 

the ‘noxious’ nature of a plant that sends forth invading roots 

or branches into a neighbor’s property.” Fancher, 274 Va. at 

555, 650 S.E.2d at 522.

4 Even in Smith, this Court recognized such a duty, albeit 

limited to “noxious” plants. 174 Va. at 219, 5 S.E.2d at 495.
8

allowing imposition of a duty on the owner of a tree to protect 

a neighbor’s land from damage caused by the tree, addresses a 

narrow category of actions arising from nuisance caused by the 

encroachment of vegetation onto adjoining improved lands.5 See

id. The duties imposed in Fancher and Smith are dramatically 

different than duties necessary to support an action for 

personal injury predicated upon a duty of a landowner regarding 

the natural decline of trees on his or her property, which is 

adjacent to a roadway. The Fancher line of precedent does not 

support a duty on the part of a landowner to inspect and cut 

down sickly trees that have the possibility of falling on a 

public roadway and inflicting injury. Thus, Fancher does not 

support finding a cause of action in the instant matter, where 

the alleged injuries arose from an allegedly dead or decaying 

tree falling from private land onto a vehicle traveling on a 

public highway.

In the case of Price v. Travis, 149 Va. 536, 140 S.E. 644 

(1927), this Court stated:

It is well settled that public highways, whether they 

be in the country or in the city, belong, not 

partially but entirely, to the public at large, and 

 5 In Fancher, we expressly stated that “[i]t would be 

clearly unreasonable to impose [a duty to protect a neighbor's 

land from damage caused by intruding tree branches and roots]

upon the owner of historically forested or agricultural land, 

but entirely appropriate to do so in the case of parties, like 

those in the present case, who dwell on adjoining residential 

lots.” 274 Va. at 557, 650 S.E.2d at 523.
9

that the supreme control over them is in the 

legislature. This plenary power over the streets to a 

certain extent is conferred by the legislature of the 

State upon the cities and towns thereof.

. . . .

Any part of the highway may be used by the 

traveler, and in such direction as may suit his 

convenience or taste. No private person has a right 

to place any obstruction which interferes with this 

right on any part of the highway within its exterior 

limits. . . . The duty of the [public entity that 

maintains the highway] is to perform a positive act in 

the preparation and preservation of a sufficient 

traveled way. The duty of others is to abstain from 

doing any act by which any part of the highway would 

become more dangerous to the traveler than in a state 

of nature, or than in the state in which the [public 

entity that maintains the highway] has left it.

Id. at 541-42, 140 S.E. at 646 (citations and internal 

quotation marks omitted).6

The duty owed by adjoining property owners is to refrain 

from engaging in any act that makes the highway more dangerous 

than in a state of nature or in the state in which it has been 

left. Id. There were no allegations in the amended complaint 

to suggest that Dunlora engaged in any affirmative act that 

caused the property adjoining the highway to be different than 

in its natural state or different from the condition in which 

it was left when the road was built. The allegations of the 

 6 The General Assembly has vested the Commissioner of 

Highways with the power to do all acts necessary for 

maintaining and preserving state roads. See Code § 33.1-13.

The duty of VDOT or any other entity responsible for 
10

amended complaint are stated in terms of a failure to act, and 

the issue is whether there is a duty requiring a landowner to 

act.

In discerning whether common law tort principles of this 

Commonwealth impose a duty upon landowners to protect 

individuals traveling on an adjoining public highway from 

natural conditions on the landowner’s property, we note that no 

such duty existed under relevant English common law. Also, 

this Court has never recognized, nor do our precedents support,

a ruling that a landowner owes a duty to protect travelers on 

an adjoining public roadway from natural conditions on his or 

her land. Thus, the circuit court did not err.

Conclusion

Accordingly, for the reasons stated, we will affirm the

judgment of the circuit court and enter final judgment.

Affirmed and final judgment.

 

maintaining the safety of the roadway presents a question not 

now before us.

JUSTICE LEMONS, with whom JUSTICE MIMS and JUSTICE POWELL 

join, dissenting.

Well known and ordinary principles of negligence should 

control this case.

In Smith v. Holt, 174 Va. 213, 219, 5 S.E.2d 492, 495 

(1939), we held that an adjoining landowner had a cause of 
11

action if a sensible injury was inflicted by the protrusion of 

roots from a noxious tree or plant on the property of an 

adjoining landowner.

In Fancher v. Fagella, 274 Va. 549, 650 S.E.2d 519 (2007),

we reexamined the issue of injury caused by the encroachment of 

vegetation onto adjoining property. Fancher concerned a 

situation involving a sweet gum tree that allegedly caused 

structural damage to an adjacent townhome property through its 

root system and overhanging branches. 274 Va. at 552, 650 

S.E.2d at 520. Upon considering the approaches of various 

other jurisdictions to determine whether a nuisance exists and 

a right of action arises when vegetation encroaches across 

property lines, as well as the "Virginia Rule" stated in Smith 

v. Holt, 174 Va. at 219-20, 5 S.E.2d at 495, we adopted what is 

called "the Hawaii approach."1 The Supreme Court of Tennessee

has explained this approach as follows: " '[E]ncroaching trees 

and plants may be regarded as a nuisance when they cause actual 

harm or pose an imminent danger of actual harm to adjoining 

property.' " Francher, 274 Va. at 556, 650 S.E.2d at 522 

(quoting Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 364 (Tenn. 

2002)).

 1 We overruled the "Virginia Rule" stated in Smith v. Holt, 

"insofar as it condition[ed] a right of action upon the 

'noxious' nature of a plant that sends forth invading roots or 
12

In Fancher, we articulated a rule allowing relief where 

trees encroaching onto the land of another constitute a 

nuisance, and we held that trees encroaching upon the property 

of another are a nuisance where they cause actual harm or the 

imminent danger of actual harm. 274 Va. at 555-56, 650 S.E.2d 

at 522. Fancher therefore recognized that a trial court must 

determine whether circumstances are sufficient to "impose a 

duty on the owner of a tree to protect a neighbor's land from 

damage caused by its intruding branches and roots." Id. at 

556-57, 650 S.E.2d at 523.2

The duty recognized by this Court in Fancher is in accord 

with the broad common law maxim: "sic utere tuo ut alienum non 

laedas" — one must so use his own rights as not to infringe 

upon the rights of another. See, e.g., Burwell v. Hobson, 53 

Va. (12 Gratt.) 322, 325 (1855). The principle of sic utere

precludes negligent use of land so as to injure the property of 

another. See, e.g., Smith, 174 Va. at 215-18, 5 S.E.2d at 493-

95 (citing with approval Mississippi court's use of that 

principle as rationale for what was adopted as the "Virginia 

Rule"), overruled on other grounds by Fancher, 274 Va. at 555-

56, 650 S.E.2d at 522; Raleigh Court Corp. v. Faucett, 140 Va. 

 

branches into a neighbor’s property." Fancher, 274 Va. at 555, 

650 S.E.2d at 522.

2 Even in Smith, this Court recognized such a duty, albeit 

limited to "noxious" plants. 174 Va. at 219, 5 S.E.2d at 495.
13

126, 134, 124 S.E. 433, 435 (1924) (discussing the axiom with 

respect to surface waters).

Considering Virginia precedent and applying the common law 

principle of sic utere to the question of first impression 

presented in this matter, we should recognize that principles 

of ordinary negligence apply to natural conditions on land. 

The Restatement has provided guidance to various courts 

examining the not entirely unusual situation giving rise to the 

case before us.

The Restatement articulates limited exceptions to the nonliability rules governing natural conditions: 

A possessor of land in an urban area is subject to 

liability to persons using a public highway for 

physical harm resulting from his failure to exercise 

reasonable care to prevent an unreasonable risk of 

harm arising from the condition of trees on the land 

near the highway.

Restatement Second of Torts § 363(2). Correspondingly,

[a] possessor of land who knows or has reason to know 

that a public nuisance caused by natural conditions 

exists on his land near a public highway, is subject 

to liability for failure to exercise reasonable care 

to prevent an unreasonable risk of harm to persons 

using the highway. 

Id. § 840(2).3

 The Restatement expresses this imposition 

of liability "with a caveat for trees in rural areas" 

however. Id. § 840(2) cmt. c. Thus, in rural areas,

 3 As stated above, these sections abrogate the common law 

rule, which declined to impose landowner liability. "[A] 
14

[t]here is no duty to inspect for the purpose of 

discovering a dangerous natural condition. But if the 

possessor knows of the condition or has reason to 

know of it . . . , he does have a duty to act 

reasonably in regard to its removal. It is in 

connection with the reason to know of the condition 

that the distinction between urban and rural areas 

becomes significant. The size and condition of the 

possessor's tract of land, the nature of the highway 

and whether the possessor lives on the land or 

frequently travels the highway are all pertinent to 

the decision; and an arbitrary distinction between 

urban and rural property becomes meaningless and 

unjustified, especially when many "rural" areas are 

extensively populated.

Id.

Despite the influence of the Restatement, across the 

jurisdictions addressing the liability of landowners resulting 

from trees falling on public highways, multiple approaches have 

developed. See, e.g., Hensley v. Montgomery Cnty., 334 A.2d 

542, 545 (Md. Ct. Spec. App. 1975); Gibson v. Hunsberger, 428 

S.E.2d 489, 491-92 (N.C. Ct. App. 1993).

A number of jurisdictions have adopted a rule governed by 

the urban/rural distinction, holding that in a rural area, 

there is no duty to inspect trees in a state of nature, as such 

a duty would prove too onerous for the owners of large, 

unimproved tracts of rural land abutting public highways. See,

e.g., Chambers v. Whelen, 44 F.2d 340, 341 (4th Cir. 1930) 

(applying West Virginia law); Lemon v. Edwards, 344 S.W.2d 822, 

 

possessor of land is not liable to persons outside the land for 

a nuisance resulting solely from a natural condition of the 
15

823 (Ky. 1961); Zacharias v. Nesbitt, 185 N.W. 295, 296 (Minn. 

1921); Ford v. South Carolina Dep’t of Transp., 492 S.E.2d 811, 

814 (S.C. Ct. App. 1997).

An alternative, referenced in the Restatement comments, to 

the strict urban/suburban dichotomy is a blended inquiry, 

examining the size, type and use of the highway and land to 

determine the proper liability standard – whether there is a 

duty to inspect. See, e.g., Miles v. Christensen, 724 N.E.2d 

643, 646-47 (Ind. Ct. App. 2000) (rejecting use of the 

urban/rural categorization in resolving the duty owed); 

Hensley, 334 A.2d at 546-47; Taylor v. Olsen, 578 P.2d 779, 782 

(Or. 1978); Lewis v. Krussell, 2 P.3d 486, 491 (Wash. Ct. App. 

2000). These cases are contrasted with Brandywine Hundred 

Realty Co. v. Cotillo, 55 F.2d 231, 231 (3d Cir. 1931), which 

imposes a duty to inspect suburban forests and urban forests 

alike, and Medeiros v. Honomu Sugar Co., 21 Haw. 155, 158-59 

(1912), which imposes a general duty to inspect trees adjacent 

to public highways.

Another option is simple application of ordinary 

negligence principles, imposing a duty of reasonable care upon 

all landowners, but absent a duty to inspect trees. See

Gibson, 428 S.E.2d at 491 ("There is no duty to inspect for the 

purpose of discovering a dangerous natural condition. But if 

 

land." Restatement (Second) of Torts § 840(1).
16

the possessor knows of the condition or has reason to know of 

it . . . , he does have a duty to act reasonably in regard to 

its removal.") (quoting Restatement (Second) of Torts § 840(2), 

cmt. c).4 Many jurisdictions, regardless of whether they impose 

a duty to inspect in various circumstances, require the 

presence of patent visible decay for the imposition of 

liability, a condition that tends towards imposition of a 

uniform duty to exercise reasonable care. See, e.g., Willis v. 

Maloof, 361 S.E.2d 512, 513 (Ga. Ct. App. 1987) ("The owner of 

a tree is liable for injuries . . . only if he knew or 

reasonably should have known the tree was diseased, decayed or 

otherwise constituted a dangerous condition.");5 Pulgarin v. 

Demonteverde, 880 N.Y.S.2d 571, 571 (N.Y. App. Div. 2009) ("In 

cases involving fallen trees, a property owner will be held 

liable only if he or she knew or should have known of the 

 4 Although Gibson cites section 363(2) of the Restatement, 

the rule expressed by the court does not draw an urban/suburban 

distinction. Id. at 492; see also Wallen v. Riverside Sports 

Ctr., 618 S.E.2d 858, 861 (N.C. Ct. App. 2005) ("Increasingly, 

the courts of various states have moved away from the rigid 

urban-rural analysis towards imposing a duty of reasonable care 

upon a landowner based on the attendant circumstances. . . . In

Gibson v. Hunsberger, this Court adopted this approach in a 

case involving a tree falling on a highway, in what was clearly 

a rural setting.").

5 Georgia, despite this statement tending towards a 

universal duty of reasonable care, has recognized the 

urban/rural distinction. See, e.g., Wade v. Howard, 499 S.E.2d 

652, 654-55 (Ga. Ct. App. 1998).
17

dangerous condition of the tree . . . .") (citing Ivancic v. 

Olmstead, 488 N.E.2d 72, 73 (N.Y. 1985)).

Considering the various approaches to liability arising 

from trees adjacent to roadways in concert with the 

longstanding negligence principles articulated above, we should 

recognize a general duty of reasonable care applicable in all 

such cases. We should decline to impose a duty to inspect 

trees for defects, and we should adopt the following rule:

[A] landowner has a duty to exercise reasonable care 

regarding natural conditions on his land which lies 

adjacent to a public highway in order to prevent harm 

to travelers using the highway. A landowner is 

subject to liability only if he had actual or 

constructive notice of a dangerous natural condition.

Gibson, 428 S.E.2d at 492. Accordingly,

[t]he owner of a tree is liable for injuries . . . 

only if he knew or reasonably should have known the 

tree was diseased, decayed or otherwise constituted a 

dangerous condition. "[T]here is no duty to 

consistently and constantly check all . . . trees for 

non-visible rot as the manifestation of decay must be 

visible, apparent, and patent . . . ."

Willis, 361 S.E.2d at 513 (quoting Cornett, 237 S.E.2d at 524). 

"The alleged defect must be 'readily observable' so that the 

landowner can take appropriate measures to abate the threat." 

Lewis, 2 P.3d at 491 (quoting Ivancic, 488 N.E.2d at 73).

Realizing it is unreasonable to impose the same 

expectations upon the owners of large, rural and historically 

agricultural or forested tracts of land as that imposed upon 

the owner of a single lot in an unforested urban area, we 
18

should adopt the rule that determining whether a landowner had 

constructive notice of a dangerous tree is a fact-specific 

inquiry, depending upon a variety of factors, including the 

character of the land, the nature and frequency of the 

landowner's use, the outward appearance of the tree, and 

whether persons noticed and notified the owner of the condition 

of the tree. See Gibson, 428 S.E.2d at 492 ("[T]here is no 

evidence in the record from which constructive notice could be 

found. The tree was leaning but this was common in the area 

and the tree appeared to be healthy and sound. The tree was 

not leaning out over the road. It was not readily observable 

that the tree would fall into the road. Not one of the 

witnesses who observed the tree prior to its fall thought it 

was necessary to report the leaning tree to the Sheriff's 

Department or the Department of Transportation.").

Following well established principles governing liability 

at common law: a landowner should be liable for injuries 

resulting from a tree falling from his or her property onto a 

public highway if he or she knows or has reason to know of the 

imminent danger presented by the tree's death, decay or other 

visible defect. Cline has pled that (1) Dunlora owned the 

property upon which the tree was located at the relevant time; 

(2) the tree was "dying, dead, and/or rotten" and had been in 

this condition "for many years"; (3) the tree exhibited "open, 
19

visible and/or obvious" signs of decay; (4) Dunlora "inspected, 

serviced and/or maintained the subject tree"; (5) "Dunlora was 

on notice or should have been on notice of the subject dead, 

dying, or rotten tree"; and (6) Dunlora "knew or should have 

known" of the hazard presented by the tree, given its 

condition, being adjacent to a busy roadway. Because Cline 

pled that the subject tree constituted a sufficiently dangerous 

condition to those using the roadway, of which Dunlora had 

actual or constructive notice, I would hold that the circuit 

court erred in sustaining the demurrer.6

I respectfully dissent.

 6 The duty of VDOT or any other entity responsible for 

maintaining the safety of the roadway presents a question not 

now before us.