Article thumbnail
Location of Repository

In Search of a Unified Theory of the Duties Flowing from Property Ownership in Virginia: A Response to McElhaney’s \u3cem\u3eIf a Tree Falls\u3c/em\u3e

By E. Kyle McNew

Abstract

In his Note, Ian McElhaney concludes that the Court got it right in Cline v. Dunlora South, LLC—that the landowner owes no duty to protect travelers on adjoining roadways from natural conditions on the landowner’s property—because the Court also got it right in Cline v. Commonwealth when it held that the Commonwealth of Virginia may have that duty instead. In the narrowest view, that is certainly a defensible position. If the case is just about natural conditions and roads, then there is intuitive appeal in saying that they are the Commonwealth’s roads; so, it is the Commonwealth’s job to make them safe for travel, which includes remediating dangerous conditions on adjoining property. It also makes perfect sense from a policy standpoint to say that the Commonwealth should shoulder that burden. This Response disagrees, however, that either of these are reasons to suggest that the Court got it right in Cline v. Dunlora South, LLC, primarily because that conclusion is premised upon viewing the case with too tight of a lens. Rather, the question—and thus the answer—should have been framed more broadly so as to provide guidance for a broader range of fact patterns

Topics: road maintenance, Virginia Tort Claims Act, duty of care, sovereign immunity, Law, State and Local Government Law, Torts
Publisher: Washington & Lee University School of Law Scholarly Commons
Year: 2019
OAI identifier: oai:scholarlycommons.law.wlu.edu:wlulr-4645
Download PDF:
Sorry, we are unable to provide the full text but you may find it at the following location(s):
  • https://scholarlycommons.law.w... (external link)
  • https://scholarlycommons.law.w... (external link)
  • Suggested articles


    To submit an update or takedown request for this paper, please submit an Update/Correction/Removal Request.