If a tree falls on Long Island and nobody is home to hear it…

By | January 25, 2014

title insurance New YorkAs I look out my window at the swirling winds bending the trees in my backyard in Long Island, New York this age-old question comes to mind…

If a tree on my property falls onto a neighbors property, and either no one is home to hear it or both owners actually watch it happen, who is responsible for its removal and any damage that it may have caused?

The answer to this question is important because in tree-dense and storm-prone Long Island any major wind event will typically cause a couple of things to potentially occur.

The first is a loss of electricity because in most towns on Long Island the power lines are aboveground.

The second is the potential damage caused by falling trees followed by the question above. Realistically if a tree falls on our neighbors property the two owners will try and work something out for its removal.

But what if the tree caused damage to something in the neighbors yard or worse hits the neighbors house? Who is LEGALLY responsible?

Of course in the area of neighbor relations sometimes common sense and negotiation might supersede the law, but knowing what is actually required is critical as well.

In an article written by District of Columbia attorney Benny Kass the answer is revealed* and, as it is in so many areas of the law, it can all come down to the term ‘negligence’!

‘…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 it causes injury to a 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 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.

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 neigbor) 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 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 Isabel) caused the tree damage. If the tree owner was on notice before the hurricane 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 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.‘ (Source)

*The law may vary in individual jurisdictions.

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