A tree falls on your property: is that an act of Nature or negligence? Most of us would say that unless I cut a tree down with an ax or a chainsaw, a falling tree is a classic act of Nature, but that may not always be the case.
Falling trees are in the news because of last week’s Nor’easter that wrecked havoc on the New York metropolitan area. The storm snarled traffic, left thousands without power and flooded many communities. Even worse, several people lost their lives due to falling branches and that leads me to the topic for this blog posting. (You can read a Daily News article about the deaths from falling trees here.)
Why is a personal injury lawyer writing about falling tree branches? I do so from both a professional perspective – as an attorney – and a personal perspective – as a homeowner. As a homeowner, I take reasonable steps to keep my property safe. For most of us, it is a matter of common sense and pride of ownership. After a snowstorm, I clear my walkway and driveway. We maintain our brick walkway to make sure that there are no tripping hazards. If I know of a hazard – broken steps – and fail to repair them and if those broken steps lead to a person’s injury, then I may be liable for those damages.
What about falling trees and falling branches? Branches fall all the time. The trouble comes when a dangerous situation develops on your property and you have an opportunity to address it, but fail to do so.
Let’s say that I notice a dead tree in my backyard. I call in a tree service and an arborist informs me that the tree is dead and is in danger of falling with the next strong wind. But, I decide to do nothing. Under New York State law, the property owner may be liable if he has actual notice of a dead or decayed tree, and does nothing to remove or repair it. [Ivancic v. Olmstead, 66 N.Y.2d 349.] I had prior notice of the danger and I could have taken clear and reasonable steps to remove the threat. It makes sense that if a property owner ignores a known danger, the owner should be responsible.
But, let’s vary that scenario. What if I have a dead tree in my backyard, but I do not know that the tree could be dangerous. No arborist has examined the tree, nobody has pointed out that there could be a problem. A tree or branch falls and injures someone on my property. If there is no reason for me to know that the tree posed a threat, I am not liable. But, if I should have known the tree was dead or decayed, if it was relatively easy to see that the tree could pose a threat to someone else, I may be responsible for ignoring the problem.
Recently, a New York County judge held that the City of New York could be liable for a tree falling and injury a driver on a City-owned road surrounding a reservoir in upstate New York. Even though there was no evidence that any City employees had actual notice of a problem with the tree that was twenty feet away from the road, the Court decided that the jury could consider whether the City should have known that the tree was dead and decaying. Whalen v. City of New York, Supreme Court, New York County, Index No. 109957/05. This result makes sense as well. A property owner should not be permitted to avoid responsibility merely by ignoring problems that any reasonable person would have noticed.
So, how should you proceed? In many ways, common sense should guide you. As a homeowner, you should monitor your property for potential dangers. If you have reason to believe there is a problem with one of your trees, you should take action. You can secure or remove the tree or consult a professional. If a professional states that a tree poses a risk, you should follow his or her advice.
If you or a loved one is injured by a fallen tree or branch, find out if the accident was truly an act of Nature or if someone should have prevented the incident. Doing so requires asking the questions of the property owner: what did you know and when did you know it? It may be necessary to consult an expert. Often, arborists can determine the pre-fall tree condition by examining the remains of the tree or even photographs. Whether a tree was decayed, diseased or dead for a month or five years will have a significant impact on whether the homeowner is responsible for the damage.
If you are a property owner and have questions or if you have been hurt by a fallen tree and have questions, call me. I will be glad to discuss your rights, answer your questions and help you with a potential case. You can call me at 1-800-660-1466 or send me an email at [email protected]. The consultation is free and I will gladly assist you.
Carol L. Schlitt
New York Personal Injury Attorney