This topic is common, especially when there's storms etc.
This is a hot topic, and in many instances the offending trees are able to cause damage outside of their owners property boundaries. There’s no shortage of documented cases where a tree has failed injuring neighbours and damaging their property. But the same circumstances arise for the owner’s own property.
As it currently stands the “victim” is responsible for the cost or the insurance claim. That’s right. Your neighbours 100 foot tall gum tree fails and takes out half your house it’s your insurance company that will have to foot the bill. Obviously if the tree fails in your own yard and damages your own home it’’s the same process. Some insurance companies cover removal of the fallen tree, some have limits and others exclude it … depends on your policy. Damage resulting from the fallen tree or tree parts will be covered. Some top class policy even reimbursed you a notional value of the tree or replacement.
What is appearing more frequently in this society of legal correctness and lack of accepting responsibility is whether or not that failure was predictable and the inaction (or lack of correct or appropriate action) attributed to the failure. Tree owners have a responsibility to ensure their trees are healthy and relatively “safe” especially when they have the capacity to cause damage to third parties.
Lets take a look at the legal definitions.
Act of God - An event or occurrence due to natural causes which occurs independently of human intervention and either could not be foreseen, or if foreseen, could not be reasonably guarded against. (e.g. storm, flood, earthquake, cyclone).
Negligence - Failure to take reasonable care to avoid foreseeable harm to other people or their property.
But how does this relate to trees though? How can we make a simplified more distinct line in the sand?
I think Mattheck and Breloer summarize it well in The Body Language of Trees, “Anyone who does not take heed of defect symptoms that today can be evaluated by means of VTA (Visual Tree Assessment) is behaving negligently. If on the other hand, a tree of optimal form fails as a result of a deterioration of it’’s substance without recognizable symptoms, this constitutes an Act of God.”
But to whom does this apply, the arborist or the tree owner or both? It could be debated that what a trained arborist can see as an obvious defect may appear quite OK to the tree owner. The section fails resulting in damage but the tree owner with their reasonable judgement felt it was fine. Perhaps turning a blind eye to your trees is a good defence. This is where lawyers make money, establishing the degree of negligence of any. If the neighbour had brought up their concerns and the tree owner failed to do anything about it and didn’t get a professional assessment then indeed they behaved negligently. If an assessment was ignored, especially a written one then it’’s getting very black and white on this issue. And perhaps an owner of a substantial tree that simply ignores it is also negligent for simply not getting a professional assessment. How could you turn a blind eye to a large tree that has the capacity to strike 4 neighbouring homes?
Negligence claims can be both civil and criminal depending on the circumstances.
Insurance companies, in Australia at least, have not yet grasped these issues. I have seen many predictable failures get paid out. I have had on numerous occasions had tree owners tell me that it’’s not their problem if the tree fails due to an obvious defect but rather their insurer, some even jokingly said it would be the cheapest way to get the job done by paying the excess and denying any knowledge of the tree’’s defects. However across the globe times are changing. Storm damage from trees is a high proportion of insurance payouts. In some places questions are asked about trees within striking distance of property and reports have to be filed prior to the insurance company taking on the risk.
I have seen exclusions put on trees after storm damage by insurance companies. They have the right to exclude further damage from a tree, in this particular instance the tree had a protection order on it by council. The client wanted to cut it down however the authorities said no. Once the exclusion letter was faxed to council approval for removal was granted (within 24 hours). The tree was a 130 foot grey gum, approx 3 foot DBH with no apparent defects however the species is reknown for limb failures.
I can only suggest that responsible tree ownership means caring. Your duty of care in fact. A basic (from ground) tree assessment starts from as little as $110 with us. We are well versed in species, have solid experience and education base to make the assessment and know what to look for. Responsible tree ownership is no different than driving a road worthy vehicle that’’s well maintained … you”ll enjoy it a lot more when it’s cared for.
Also from
Fallen Trees and Negligence Quote:
Fallen Trees and Negligence
An email from my father asking if the large fir tree towering over my house was still upright after the last wind and rain storm got me to thinking about trees, neighbors and negligence. After each storm, the television news shows footage of trees which bisected houses, crunched cars and otherwise made pest of themselves. If the offending tree fell from a neighbor's property, is the neighbor liable for damages? Here's the lawyer's favorite answer--it depends!
As I learned in law school and in the courtroom since, how each case turns out depends on the facts. For example, was the tree healthy or diseased? Did the neighbor know the tree was diseased? Did the neighbor alter a condition on the land making the tree more susceptible to falling?
Here's some background on negligence. A negligence claim has four elements: 1) there must be a duty owed to the plaintiff; 2) there must be a breach of that duty; 3) the plaintiff must suffer injury; 4) which was proximately caused by the breach. In tree claims, the focus in on the first element--did the neighbor owe a duty to the plaintiff.
Duties traditionally differed depending on whether the land was rural or urban with a more stringent duty being applied to the urban landowner. The modern trend rejects the rural/urban distinction and applies a single rule.
Here is the rule. Owners of land have a duty of reasonable care to prevent defective trees from posing a hazard to others on adjacent land. The owner must have actual or constructive (should have known) notice of a "patent danger" (the defect.) The defect must be readily observable and there is no obligation to "consistently and constantly" check for defects.
Clearly this is flexible language. What is reasonable care? What facts put a landowner on notice? What is defective? To answer these questions would turn this post into a lifetime project. What is clear is that a landowner does not have a duty to protect adjacent property owners from healthy trees, even if trees of the same species, have fallen in previous storms.
A final thought for homeowners. Please make sure you have adequate insurance coverage. You need a homeowner's policy and excess liability policy. Don't skimp on liability limits.
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Had a blog comment
Quote:
" The owner must have actual or constructive (should have known) notice of a "patent danger" (the defect.)"
Sounds a lot like the current thinking behind the new form 17 (disclosure form)
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