If a tree falls, who is responsible for the damage? The answer may depend upon what notice the tree owner had. In general, the law sees a tree as an object of nature and no person or property owner has legal responsibility for a tree. This situation changes if a property owner is made aware that a tree on his property poses a hazard and is a threat to property or to people. If a person has notice about a tree hazard and fails to remedy the problem, the law can view that as negligence and the person can be held liable for damage or injury caused by that tree.
Actual and Constructive Notice of a Tree Hazard
Therefore, the question to ask is if a property owner had notice. There are two types of legal notice: actual and constructive. A property owner had actual notice if someone told him or her about the hazard. For example, if you give your neighbor a letter with photographs and an arborist’s report, that will serve as actual notice. In a recent New York City case, the City Park’s Department marked a tree as needing trimming, failed to trim the tree, and when the branch fell and killed a man, the City was held liable.
Constructive notice means that the situation was so obvious and easily seen by the property owner, that the property owner should have known about the hazard. Constructive notice is less certain than actual notice. For example, if a dead tree stood in front of a person’s home and was badly leaning over a neighbor’s property, one could argue that the property owner should have known that tree was causing a problem and that could make the property owner liable for damage caused by the tree.
As you might imagine, proving constructive notice can be difficult. In urban and heavily settled suburban areas, a property owner can be expected to know the health and potential hazard of every tree on his property. In rural areas, the standard may not be so high. If there are naturally occurring trees in a wooded area, the owner may not be expected to know the status of each tree. However, if that owner planted a tree in his front yard, he may be expected to know if that tree poses a threat.
Examples of Notice with Trees
Let’s look at some examples about notice of a tree hazard:
- Healthy tree/No Notice: A healthy tree on your neighbor’s property falls and causes damage to your property (e.g., damages a fence or your house). Because there was no notice and no reason for notice, your neighbor bears no liability and has no obligation for repair costs or removal of the tree. You should submit a claim to your homeowner’s insurance carrier who will pay in accord with your policy.
- Dead Tree/You Gave Notice to Your Neighbor: A dead tree on your neighbor’s property was leaning over your property, clearly a tree hazard. You obtained an arborist’s report saying the tree needed to come down and you shared that information in a letter with your neighbor. If that tree falls and damages your property, your neighbor can be held liable for that damage. You should submit a claim to your homeowner’s insurance company as they may pursue the claim for you. You should also notify your neighbor of the damage and ask him or her to compensate you for your damage. If your neighbor refuses to pay, you can take the neighbor to court to seek compensation for your damages. (You can read here about how to put your neighbor on notice about a tree hazard.)
- Dead Tree/No Notice Given: A large dead tree hangs over your property. It falls and causes damage. You can seek compensation from your neighbor, though your neighbor’s liability will depend upon proving that your neighbor should have known of the damage. You should submit a claim to your homeowner’s insurance company as they may pursue the claim for you. You should also notify your neighbor of the damage and ask him or her to compensate you for your damage. If your neighbor refuses to pay, you can take the neighbor to court to seek damages. Remember, to prevail in court you will need to demonstrate that your neighbor should have known of the hazard caused by the dead tree branch.
Looking at these examples, you should realize that if you believe that your neighbor’s tree poses a threat to you or your property, it is always best to document the issue and communicate it to your neighbor. If you see a tree on your property that poses a hazard, you are best served by addressing that problem.