Who Is Responsible When Your Tree Falls?
A year ago, few of us ever heard of a
"Derecho"; now, faced with fallen trees, damaged property and even a
few deaths, Derecho - meaning super-strong windstorm - is a household word. One
we really never want to hear -or see - again.
Who is responsible if your neighbor's
tree falls on your property? The general rule is that unless the neighbor knew
- or should have known - that his tree was unsafe - even if it caused damage to
person or your property, he is not responsible. Our courts follow the old
common law: it’s your property, so take care of it, unless you can prove your
neighbor was negligent.
The legal answer to this is quite
simple; however, the interpretation and implementation of the law is rather
complex.
How do you prove that your neighbor’s
tree was unsafe and that your neighbor was negligent in not assuring that the
tree would not fall? What constitutes negligence?
The answer depends on all of the
facts. Did your neighbor have any knowledge that the tree was a potential
hazard? Should the tree owner have been on notice of a problem because the tree
was not showing leaves but only bare limbs?
Did you complain about the safety of
the tree, and yet he took no action?
Here we have to look to specific
cases. Take the leading case in the District of Columbia (Dudley v
Meadowbrook, 1961). The Defendant’s tree fell onto the Plaintiff’s
property, and damaged a garage. The evidence indicated that there was no strong
wind blowing when the tree fell. The Court wrote that "a healthy tree does
not ordinarily fall of its own weight without some exterior force being
directed against it. Though some evidence indicated that the tree looked sound,
it was in fact full of decay. At least 13 years earlier it had been subjected
to surgery and a large area filled with concrete."
In conclusion, the Court suggested
that a land owner has a duty to periodically inspect the trees on his property
or at least have them examined by an expert to determine whether they are safe
to continue to stand.
In order for negligence to be found,
the Plaintiff (the injured neighbor) would have to file suit against the tree
owner. Most cases are not clear cut; they require extensive background
research, expert testimony and a potentially lengthy trial. This is both time
consuming and expensive for a Plaintiff. And it should be pointed out that our
legal system has adopted what is known as the "American Rule of Legal
Fees". In the absence of a written contract or a statute authorizing
attorneys fees, each side pays their own attorneys fees.
And even if a lawsuit is brought, the
tree owner can raise the defense that an "Act of God" (or in this
case an Act of Derecho) caused the tree damage. If the tree owner was on notice
before the storm that the tree was likely to fall down, this defense may not be
accepted by a Court of Law. But it nevertheless is a legal defense which every
defendant will raise when sued.
There is yet another defense, namely
"contributory negligence". The general rule throughout the United
States is that if a tree limb or a tree root protrudes on a neighbor’s
property, that neighbor has the right to exercise self-help -- i.e. the
offending root or limb can be cut off.
Some Court cases have determined that
the tree owner was not liable, since the neighbor -- who knew that the tree was
dangerous -- did not exercise this self-help. In other words, the neighbor’s
own negligence defeated his claim against the tree owner.
What if your tree falls on a public roadway?
According to a recent Supreme Court case in Virginia, a landowner does not have
a duty to inspect and cut down sickly trees that have the possibility of
falling on a public roadway and inflicting injury. This is the duty of the
local government to periodically inspect to assure the safety of the public.
This is also the law in the District of Columbia, where the high court here
made it clear that government must exercise reasonable care in the maintenance
of well traveled thoroughfares.
What is the role of your insurance
policy? Homeowners should carefully review their home owner’s insurance policy
-- often called the "hazard policy". Many policies are now written in
relatively simple English, so you should be able to understand what position
your insurance carrier will take should you decide to file a claim. In most
cases, your carrier will reimburse you for any damage caused to your property
when a tree falls, subject of course to the level of your deductible. If,
however , no damage resulted, there will be no insurance coverage and you have
to bear the cost to remove the tree.
And according to Robin Manougian, an
insurance agent in Silver Spring, Maryland, "should a live tree be struck
by lightning - which is a covered peril in the policy - the insurance would pay
for the tree up to the policy dollar limits, but generally not for the removal
of the tree."
But, do you really want to file a
claim against your insurance policy?
We have all heard stories that the carrier
-- when faced with a claim -- will either significantly increase the next years
premium or decide not to renew the policy.
Thus, if your damage is minimal, give
serious thought to picking up the cost yourself. Let’s say you have $4000 in
damage and your deductible is $2,000. If you file a claim, and you can produce
proper evidence that the repair cost is really $4000, you will receive $2,000
from your carrier. But is this money worth facing possible non-renewal (or an
increased insurance premium) next year?
If there is damage to your property,
talk with your insurance agent, but make sure that he/she understands you are
only seeking information and advice -- and are not yet ready to formally file
your claim.
There is a long -- often convoluted
and contradictory -- legal history relating to the development of "tree
law". Our legal system is predicated on what we refer to as the
"Common Law" -- the laws which came over from England before the
founding of our nation. Under the common law, the land owner owed no duty to
those outside his property to correct natural conditions on the property --
even though those conditions might present a hazard to outsiders. My home was
my castle and I was master of that property.
But as our nation grew from a rural to
an urban environment, this common law rule began to lose its impact. Houses
were next door to each other, and homeowners had to be concerned about injuring
or damaging their neighbor -- or their neighbor’s property.
Accordingly, Judges faced with such tree-falling
cases began to carve out exceptions to the common law. Some Courts held that a
falling tree was a trespass; others held that such a tree was a nuisance. Both
theories evolved into the current rule of law, namely that the tree owner is
only responsible if that owner was negligent.
The clear moral to this legal history
is that litigation may not be the best approach. If your neighbor’s tree falls
onto your property -- whether or not it causes damage -- you should talk to
your neighbor and propose that you share in the cost of removal and repair.
Clearly, this is probably the least expensive way to resolve your issues, and
you also can avoid filing that claim against your insurance carrier.
How do tree owners protect themselves
to avoid the allegation of negligence? One safe harbor is to have your trees
periodically inspected by a certified arborist, and get a written report
stating that the trees are healthy.
