Who’s responsible when a tree falls?

In an unwelcome repeat of last summer’s scenario following the derecho, many Washington area homeowners are dealing with the aftermath of fallen trees caused by winds from Hurricane Sandy that swept across the Eastern Seaboard this week.

If you were spared from this situation last summer, you might assume that your neighbor would be responsible for assuming the costs of his tree that fell on your property.

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.

Some 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.

What if your tree falls on a public roadway? According to a recent Supreme Court case in Virginia, a landowner does not have a duty to inspect and cut down sickly trees that have the possibility of falling on a public roadway and inflicting injury. This is the duty of the local government to periodically inspect to assure the safety of the public. This is also the law in the District, where the high court made it clear that government must exercise reasonable care in the maintenance of well traveled thoroughfares.

What is the role of your insurance policy? Homeowners should carefully review their home owner’s insurance policy. Many policies are now written in relatively simple English, so you should be able to understand what position your insurance carrier will take should 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 level of your deductible. If, however, no damage resulted, there will be no insurance coverage and you have to bear the cost to remove the tree.

According to Robin Manougian, an insurance agent in Silver Spring, “should a live tree be struck by lightning — which is a covered peril in the policy — the insurance would pay for the tree up to the policy dollar limits, but generally not for the removal of the tree.” Depending on where you live and the size of the tree, it can cost upwards of $5,000 to $10,000 to legally remove it.

But do you really want to file a claim against your insurance policy?

We have all heard stories that the carrier — when faced with a claim — will either significantly increase the 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 proper evidence that the repair cost is really $4,000, you will receive $2,000 from your carrier. But is this money worth facing possible non-renewal (or an increased insurance premium) next year?

If there is damage to your property, talk with your insurance agent, but make sure that he/she understands you are only seeking information and advice — and are not yet ready to formally file your claim.

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.

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.

How do tree owners protect themselves to avoid the allegation of negligence? One safe harbor is to have your trees periodically inspected by a certified arborist, and get a written report stating that the trees are healthy.

Benny L. Kass is a Washington lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet “A Guide to Settlement on Your New Home,” send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.