Trees & the Law

December 3, 2005

By: David K. Jaffe

"I think that I shall never see a poem lovely as a tree." [1]

It is almost beyond comprehension that something which appears as simple, lovely and majestic as the everyday common tree could involve so many complex legal issues. Tree law encompasses a number of general categories:

  1. Boundary & Border Line Trees
  2. Trespassing Cases
  3. Cases Involving Roots
  4. Real Estate Cases
  5. View Cases
  6. Municipality and Public Highway Cases
  7. Utility Company Cases
  8. Easements and Rights of Way
  9. Negligence Cases
  10. Safety-Related Cases

Tree law cases can be fascinating, and many involve several subject areas. For example, some cases concerning roots also involve the same issues as those of border, boundary line and trespassing cases. Trespass cases can arise when a party takes the law into their own hands by performing trimming or actual removal operations. Others involve accidental trespass in that the offending party did not know where the property line was located. But whether intentional or not, trespassing is illegal. In Connecticut, Conn. Gen. Stat. § 52-560[2] provides for treble damages due to destruction of trees.

Typically, the general landowner is not even aware of the legal aspects relating to the trees growing on the landowner's property. This lack of knowledge on the part of the landowner often prevents the landowner from taking the proper precautions in guarding against some of the responsibilities and liabilities that may result when injuries are caused to person or property by a tree growing on the landowner's property thus causing costly and needless litigation.

Private landowners are not the only individuals involved in litigation resulting from incidents relating to trees. Municipalities, public utility companies, private tree companies, practicing arborists and highway agencies are also frequent parties to litigation arising out of incidents relating to trees. The rights, duties and liabilities that each of these parties may have with regard to trees is an area rich with case law.

The landowner will be held to a duty of care determined by principles of negligence, to wit: the duty of common prudence in maintaining trees on the landowner's property in such a way as to prevent injury to a neighbor's person and property. Knowledge of the dangerous condition is a factor in whether the landowner will be responsible for damages caused by a falling tree. A landowner is also held to an even greater duty of inspection to discover possible defective conditions of a tree in order to prevent the tree from falling and injuring others.

Constructive Notice

Generally speaking, an owner of land may be held liable on negligence principles resulting from the falling of a tree or limb thereof. The duty owed is therefore related to the hazard presented. The duty is defined by the nature of the locality, i.e., is it in a target area, the seriousness of the danger, and the ease with which it may be prevented. See Prosser and Keeton, Law of Torts (5 th ed. 1984), 391 § 57; Restatement (Second) of Torts, § 363(2). Circumstances existing at the time are to be considered in determining what a reasonably prudent man would have done. Thus, when the situation involves danger, the reasonably prudent man would be expected to take greater precautions or be more alert. Hence, the duty to inspect a given tree increases as the risk of harm increases. A defendant will be deemed negligent for failing to look, or in failing to observe what is visible when he does look. If the condition is one of which the defendant would become aware through reasonable exercise of his faculties, the defendant is chargeable with notice. Where a reasonable inspection or an observant and seeing eye would have revealed the dangerous conditions, constructive notice is established. See Toomey v. State, 1994 Conn. Super. LEXIS 539 (Feb. 17, 1994; J.D. of Litchfield; Dranginis, J.) Id. Toomey surveys leading cases in the area and provides an excellent summary.

In the case of trees located on a landowner's property, the landowner is held to a non-delegable reasonable duty of care in maintaining such trees and he is held to an even greater duty of inspection to discover possible defective conditions of a tree in order to prevent the tree or its branches from falling and injuring others. See Liability of Private Owner or Occupant of Land Abutting Highway for Injuries or Damage Resulting from Tree or Limb Falling onto Highway, 94 A. L .R.3d 1160. If such duty of care is breached, injuries to a person within the target area are actionable. See Toomey, supra.

The following is a helpful checklist:

I. Facts and circumstances which tend to establish that the property owner failed to exercise due care in maintenance of trees:

A. Urban/Rural location of tree;

B. Tree's growth as natural;

C. Dangerous characteristics of tree;

D. Visible and apparent dangerous condition of tree;

E. Property owner's knowledge of dangerous condition of tree

F. Dead and rotten condition of tree disclosed by examination and inspection.

II. Damages recoverable for injuries caused by trees:
A. Costs of removing debris of fallen tree;

B. Market value of property destroyed by fallen tree;

C. Costs of repairs to property injured by fallen tree;

D. Value of trees and other vegetation injured or destroyed by fallen tree;

E. Value of animals killed;

F. Wrongful death actions for individuals killed;

G. Medical expenses, pain and suffering, and lost wages for individual injured.

III. Damages recoverable for injuries to trees:

A. Resulting depreciation in the value of the land;

B. Cost of restoration;

C. Value of tree;

D. Aesthetic value of tree;

E. Commercial value of tree's timber;

F. Reduction in rental value of commercial property;

G. Punitive damages;

H. Damages proscribed by statue.

Additional Resources:

Connecticut Tree Protective Association, www.ctpa.org

Arboriculture & the Law, by Victor D. Merullo & Michael J. Valentine

Tree Law Cases in the USA , by Lew Bloch

Conn. Gen. Stat. § 23-61a. Tree Protection Examining Board

Conn. Gen. Stat. § 23-61b. Licensing for Arboriculture

Tree or Limb Falls onto Adjoining Private Property: Personal Injury and Property Damage Liability, 54 A.L.R. 4 th 530


[1] Trees , by Alfred Joyce Kilmer (1914)

"I think that I shall never see, a poem lovely as a tree;

A tree whose hungry mouth is prest, against the earth's sweet flowing breast;

A tree that looks at God all day, and lifts her leafy arms to pray;

A tree that may in summer wear, a nest of robins in her hair;

Upon whose bosom snow has lain, who intimately lives with rain,

Poems are made by fools like me, but only God can make a tree."

[2] Conn. Gen. Stat § 52-560 . Damages for cutting trees, timber or shrubbery.

Any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another or on public land, without license of the owner, and any person who aids therein, shall pay to the party injured five times the reasonable value of any tree intended for sale or use as a Christmas tree and three times the reasonable value of any other tree, timber or shrubbery; but, when the court is satisfied that the defendant was guilty through mistake and believed that the tree, timber or shrubbery was growing on his land, or on the land of the person for whom he cut the tree, timber or shrubbery, it shall render judgment for no more than its reasonable value.