Who's Responsible for the Falling Tree?

October 30, 2009

By: David Jaffe

By David K. Jaffe

What is the duty of a landowner when their tree falls on the property of another landowner?

A. Private Residents

Generally speaking, a landowner, whose tree falls in the yard of another landowner due to a true "act of God" such as a severe rain or wind storm, owes no duty to the adjacent landowner for property damages or personal injury which results from parts of the tree, such as branches, falling in the neighbor's yard.

However, let's presume that the tree was dead or diseased to the point where it was reasonably ascertainable through observation or inspection that it was dangerous and could damage adjacent property or persons on that property and the landowner, although on reasonable notice of this condition did nothing to remediate the dangerous condition of the tree. In such a case, the landowner on whose land the dangerous tree is located can be liable for the damages and injuries occurring from the failure of the defective tree since he or she had actual or constructive notice of such defect.

Therefore, it is important that all homeowners and landowners have their trees regularly inspected by a state certified arborist who is licensed to inspect and maintain hazardous trees. If a tree is dead it should be removed immediately or quarantined until removal. Often, however, an unsafe tree may be pruned again by a licensed arborist, using proper equipment, and thereby made safe and more ascetically pleasing as well.

Additionally, of course, a dangerous tree needs to be maintained for the safety of the landowner and land occupants on whose land the otherwise dangerous tree is actually located.

B. Commercial Land Owners and Operators

In regard to amusement parks and golf courses and other commercial facilities containing a high density of trees on premises, it is perhaps even more incumbent upon them to have the trees annually inspected, if not bi-annually, by a state certified arborist, who has a crew large enough to meet the service needs of such commercial facility.

If this is not accomplished, then each of the commercial facilities, when a dangerous tree fails and harms a patron or customer of their facility, is exposed to liability for the degree of harm that occurs, since a landowner or possessor owes a high duty of care to a business invitee, such as a patron of a golf course or an amusement park.

Common characteristics of dangerous trees include the following:

1. Few or no leaves and buds on its branches;

2. Noticeable hollows, including areas where birds make nests and areas where heartwood has visibly turned into rotted wood and mineral and animal remains;

3. Conks and other types of deformities on the trunk of the tree;

4. "Concrete coffins" or bases of trees over which concrete is poured, often accompanied by cracks in the concrete through which the roots are growing, thereby evidencing the fact that the nutrients and gases which the roots take in are being prevented from flowing up through the trunk of the tree to feed it;

5. Severe leaning of a tree or a misshapen or significantly reduced tree crown.

Large old trees, in particular, have the capacity to wreak severe havoc on property and maim and kill people walking below them if they are not properly taken care of.

Therefore, it is very important that the tree owner or possessor make substantial efforts in pursuit of tree care where the situation warrants it.