Terran's Tips

After the Storm Legal Questions

The windstorm of the weekend of June 12 caused havoc, above and beyond raking leaves and downed sticks. Many trees were felled by the heavy rains and winds, and owners whose homes were damaged are concerned about the possibility of liability to their next-door neighbors, as well as who will bear the cost of removing the debris.

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

Let's Begin with Insurance.
Homeowners should carefully review their homeowner'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 if 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 provide 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 an eight-year-old machine is worth less than its original cost.

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 year's 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 $4,000 in damage and your deductible is $2,000. If you file a claim, and you can produce evidence that the repair cost is really $4,000, depending on your policy, you will receive $2,000 from your carrier. But is this money worth facing possible nonrenewal (or an increased insurance premium) next year?

You should talk with your insurance agent, but make sure the agent 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 it causes injury or damages property, you will not be liable so long as you are not negligent.

But what constitutes negligence?

The answer depends on all of the facts. Did you have any knowledge that your tree was a potential hazard? Should you have been aware a problem existed 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," which has its origins in common law inherited from England before the founding of the United States. Under common law, a landowner had 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 one another, 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, that the tree owner is responsible only if the owner was negligent.

A more precise definition of negligence requires looking at 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 had been placed around the tree during construction of an apartment house several years earlier.

The trial court found for the defendant. The appellate court reversed, saying: "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 landowner 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 courts follow 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.

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 snowstorm that the tree was likely to fall down, this defense might not be accepted in court.

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 -- to cut off the offending root or limb.

Some court cases have determined that the tree owner was not liable because 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 on 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.

We're here to help you in any way that we can. 
Please email joanna@woodlandtree.com or call us at (901) 309-6779 for any of your tree servicing needs.

Posted by Mark Allen at 14:01