Housing Counsel: Who is Responsible When Your Tree Falls?

Written by Posted On Sunday, 26 February 2006 16:00

Mid-February's snow storm caused havoc, above and beyond fender benders and slipping on black ice. Many trees were felled by the heavy amount of snow, and homeowners who have suffered damage are concerned about the possibility of liability to their next door neighbor, as well as who will bear the cost to remove the debris.

The legal answer to these concerns is quite simple; however, the interpretation and implementation of the law is rather complex.

Let's begin with insurance. 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 amount of your deductible.

According to the Insurance Information Institute, there are two kinds of insurance coverage:

Replacement Cost and Actual Cash Value: Replacement cost policies provides you with the dollar amount needed to replace a damaged item with one of similar kind and quality without deducting for depreciation (the decrease in value due to age, wear and tear, and other factors).

Actual cash value policies pay the amount needed to replace the item minus depreciation. Suppose, for example, a tree fell through the roof onto your eight-year-old washing machine. With a replacement cost policy, the insurance company would pay to replace the old machine with a new one. If you had an actual cash value policy, the company would pay only a part of the cost of a new washing machine because a machine that has been used for eight years is worth less than its original cost. Source: Settling Insurance Claims After a Disaster , Insurance Information Institute, 2/13/06).

But, nowadays, there is a threshold question you must ask: Do I really want to file a claim against my insurance policy?

Insurance companies have been hit hard financially in the past few years. We all have heard of numerous examples where 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, depending on your policy, you will receive $2,000 from your carrier. But is this money worth facing possible non-renewal (or an increased insurance premium) next year?

You should talk with your insurance agent, but make sure that he/she understands that you are only seeking information -- and are not yet ready to formally file your claim.

Now let's get to the issue of liability. The general rule is that if your tree falls on your neighbor's property, even if causes injury to person or damage to property, you will not be liable so long as you are not negligent.

Furthermore, since the tree fell during a severe hurricane, you can usually raise the defense that this was an "Act of God."

But what constitutes negligence?

The answer depends on all of the facts. Did the tree owner 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 your neighbor complain about the safety of your tree, and yet you took no action ?

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 significance. 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.

But readers will say that begs the question. Exactly what constitutes negligence?

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. Furthermore, although the tree was in "full foliage with no dead branches," on one side of the tree there was a strip of cement extending from the ground to a height of about 5 feet. This cement was placed around the tree during construction of an apartment house several years earlier.

The trial (lower) Court found for the Defendant. However, the appellate court reversed. According to the Court opinion:

We think the sound and practical rule is that liability in such cases is to be determined by the test of negligence and that a landowner should be held to the duty of common prudence in maintaining his property, including trees, in such a way as to prevent injury to his neighbor's property.

The Court went on to state 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 Court follows 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 has to pay their own attorneys fees.

And even if a lawsuit is brought, the tree owner can raise the defense that an "Act of God" caused the tree damage. If the tree owner was on notice before the snow 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 is that if a tree limb or a tree root protrudes on a neighbor's property, that neighbor has the absolute 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.

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.

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Benny L Kass

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of KASS LEGAL GROUP, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.


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