But that may not be the case.
The general rule is that unless the neighbor knew or should have known that his tree was unsafe, he is not responsible even if it hurt you or your family member or damaged your property. Our courts follow the old common law: It’s your property, so take care of it, unless you can prove your neighbor was negligent.
The legal answer to this is quite simple; however, the interpretation and implementation of the law is rather complex.
How do you prove that your neighbor’s tree was unsafe and that your neighbor was negligent in failing to assure that the tree would not fall? What constitutes negligence?
The answer depends on all of the facts. Did your neighbor 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 you complain about the safety of the tree, and yet he took no action?
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. The court wrote 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.”
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 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 legal system has adopted 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 those costs on his 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 storm that the tree was likely to fall down, this defense may not be accepted by a court. 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 throughout the United States is that if a tree limb or a tree root protrudes on the property of the owner’s neighbor, that neighbor has the right to exercise self-help: The offending root or limb can be cut off.