Injures Caused by Fallen Trees and Branches: Who is Responsible?
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.
Last week, a Nor’easter 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.
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.
This information is intended for education purposes. It is not legal advice. If you want legal advice, you should consult with an attorney.
Carol L. Schlitt - A New York Personal Injury Attorney
I hope you found this information helpful. Please call or email me if you have comments, questions or would like assistance with a case involving a fallen tree or branch or premises liability.
Carol L. Schlitt
New York Personal Injury Attorney
1-800-660-1466
Carol@SchlittLaw.com.