Fallen trees| negligence vs Act of God

Eric Frei · 8th December 2007, 06:56 PM

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.

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)

shaggs · 9th December 2007, 10:09 AM

Don't you just love it thought, when dealing with a fallen tree on a house after a storm and you get the well used comment.."I applied to have this tree removed but the council wouldn't let me!!!"

Eric Frei · 9th December 2007, 10:28 AM

Perfectly healthy defect-less trees fail too in storms.

It's all about responsible tree ownership.

However in saying that large trees I would say are more likely to fail and do more damage. So when some-one has a 200' euc close to the house, healthy, no defects it is still more likely to lose something over a 30' tree.

How often you get asked if a huge tree is safe? Be very careful how you answer that to the customer. Even healthy trees fail.

Defective trees, especially after it's been brought to the owners notice go down the negligence area. Most likely only persued for such in injury cases.

TrevMcRev · 9th December 2007, 03:41 PM

Spotted this large failure yesterday. Must have not long happened, police had road blocked off as tree had fallen on a car stopped at traffic lights.
When i got there the car was gone but i were told the female driver was not injured.

I went in past the taped off area to get a closer look at the tree failure.
Nobody questioned me, but like treemachine i were ready with my response!

The tree had a major low stem cut/torn off i estimate 5+ years ago. The townhouses there are probly 5-10 years old so likely was the work of the builders at the time for clearance reasons.

The point of failure was badly decayed.

Absolutely no damage to the uninformed home/tree owners property, so they get away with a free removal probly under insurance

newguy18 · 9th December 2007, 04:01 PM

Man the next thing you know people or insurance companies are gonna have trees cut back to where they can't hit the neighbors property just there own and then after the trees get butchered and rot and fail we're still gonna have to put up with the same bs on a smaller scale.I have always advised thought on landscapes that small trees and shrubs be planted instead of tall growing trees because I think they would stand a better chance of reaching maturity unlike a monster sized tree un the same area.

DBS · 11th December 2007, 04:18 AM

Here is a job i had been called to do.... funny how after i cleaned up the trees he then says oh...your a building and remodeling contractor?? i said yup and so the fun began...see second link, i usually have a lil fun when camera is around..

Fallen Trees For No Reason?!?!?

Remodeling job Due to trees... :-)

newguy18 · 11th December 2007, 04:31 AM

Dang you got that figured out when treework is slow you remodel.Do you do a lot of insurance work?

DBS · 11th December 2007, 09:12 AM

Ha-ha yeah kind of. Let?s just say there pretty much isn?t anything I can?t or won?t do. I have my hands in all aspects of house "work" I also own a landscape company that you guessed it...cleans the site after tree removals...

I am also capable of plumbing, electrical, HVAC, masonry, excavation, yet I am a builder by trade. But when you think about where all (well most) of my material comes from, how could I not have an interest in tree work. I don?t do many insurance jobs and they are kind when they do come along.

and believe it or not the insurance companies are not wanting to pay AT ALL for trees/limbs that fall and damage your property...round here it truly is an "Act of God"

Matter of fact I was a victim my self...

Crime Scene Plus the Take Down

PLEASE I am not an Arborist but yet an Enthusiast.

I AM requesting suggestions to better my habits as well as Praise for any if any that are present. Pics don?t always tell the whole story, but I am definitely aware of some breaches of safety.

Kind Regards,

Daryl

-Daryl

TREE-SURFER · 11th December 2007, 09:21 AM

Quote:

Originally Posted by shaggs

Don't you just love it thought, when dealing with a fallen tree on a house after a storm and you get the well used comment.."I applied to have this tree removed but the council wouldn't let me!!!"

"Well Sir, did you ask for that in writing?" Does any Council or LGB put anything like that in writing? Probably not, hell, that would make them liable.

TREE-SURFER · 11th December 2007, 09:49 AM

This image and the others, are fraught with tell tale signs of why it failed,as TrevMcRev has pointed out.

Decay from the large wound to the side (or top as we see it in the picture), was probably performed by the home owner, or like he says, the builders, judging by the capacity of the cut, and the denseness of the crown. It was more than likely easier for them to 'Reduce' the size of the tree for their benefit by cutting off what was the balancing factor for the tree itself, promptly putting passers by and motorists in danger, albeit, in the future.

I would challenge to find out who and when this cutting occurred and file for damages against the owner/builders, for presenting a hazardous tree in the first place and for not having it rectified.

It is clearly obvious, that uneven weight, decay and massive compression were the cause for failure.
'Negligence'

TREE-SURFER · 11th December 2007, 10:01 AM

Act of God
Not to sound too impermanent, but, Billy Connelly once asked, " who is God, if he exists, then he is responsible for criminal damage. If he does not exist, then surely the insurance company would have to pay. Failing that, would the Church cough up the dough ? "

Good point or not?

Eric Frei · 11th December 2007, 07:57 PM

HAhaha

I loved that movie, The Man Who Sued God, a classic. He's a funny bugger, love his wit.

TREE-SURFER · 12th December 2007, 03:19 AM

Quote:

Originally Posted by Ekka

HAhaha

I loved that movie, The Man Who Sued God, a classic. He's a funny bugger, love his wit.

Very good point though, eh?. If you're an Atheist, you're gonna be ultimately Peeved off. Insurance companies. Hummmph.

treeseer · 14th December 2007, 11:15 PM

Great pics Trev, well-documented negligence.

The tree stood long enough to market the condos; job well done for the builder. If the driver's insurer wanted they could make a heck of a case. Lucky the lady was ok.

ozinus · 24th January 2008, 06:13 PM

not sure of the laws here in oz but in New Hampshire, in the event of tree failure unless the tree had been appropriately appraised by a consulting arborist and a formal document pertaining to this had been lodged then each property was responsible for the portion of tree that ended up in their property after the failure. I think this is a fantastic rule because it brings conjoining properties together to be concerned about trees within their immediate area not just what's overhanging their fence.

Eric Frei · 24th January 2008, 09:50 PM

Have you ever been asked to appraise a neighbours tree amid hostility and not allowed access to the property that owns the tree? Makes it difficult to properly assess the tree.

Not all neighbours like threatening trees and often the tree owner prefers ignorance, then it becomes an "act of god" for victims to claim upon their own insurance.

ozinus · 24th January 2008, 09:58 PM

Much like our laws of craziness. If you are thought crazy and someone identifies that you may be like it or not you will be tested. And so In NH if I suggest that your tree may be structurally unsound an Arborist must look at it!! Like it or not.... In any case if it is not looked at all parties affected share the burden.

Eric Frei · 24th January 2008, 10:01 PM

LOL

You need to read this thread.

Ignore it then claim insurance!

ozinus · 24th January 2008, 10:12 PM

Yeah similar, However at the end of the day you as a home owner will spend many dollars a year on home upkeep if you do not that is a negligence and you will pay a more expensive price later. Tree companies will happily take between 2 and 3 thousand dollars for a removal yet I have not seen one Qld marketing campaign advising customers that for $ 2000 once a year they can monitor and facilitate a garden with 3 men to visit all needs and advise proactively of the things that will be necessary in years to come. Active management of clients properties is sadly lacking in this state. As I knopw none of you I cannot quantify this to yourselves individually other than I have not seen those sorts of campaigns since my return. Education is up to us they will not teach themselves.

treeseer · 26th January 2008, 04:33 AM

Quote:

Originally Posted by ozinus

Tree companies will happily take between 2 and 3 thousand dollars for a removal yet I have not seen one Qld marketing campaign advising customers that for $ 2000 once a year they can monitor and facilitate a garden with 3 men to visit all needs and advise proactively of the things that will be necessary in years to come. Active management of clients properties is sadly lacking in this state. .

Same here, and the key is the bit about monitors just advising instead of doing. A groing number of companies do annual maintenance on high risk trees; a good investment for the owners.

O an d "appraisal" is putting a dollar value on trees; "assessing" is evaluating their condition.

mdvaden · 29th January 2008, 05:04 PM

I can't wait to go into town when the snow clears, like tomorrow, and make sure the historic Catalpa I'm rooting for is still standing !!

Another Certified Arborist said he'd cull it and that it's loaded with problems like severed roots.

I told him that one dead 4" root was cut, but asked him how he ascertained "roots" plural were cut or severed.

No answer - sort of mumbled something and walked away.

But it's not abuse free. Still, it appears to have remained at the same angle for at least 3 or 4 decades, so I'm hoping it will hang in there.

Seems that one important thing that gets missed on many trees, is at least having them looked at once per year to see how they are doing and if something has changed either good or bad.

Eric Frei · 20th September 2009, 09:17 PM

The church tried to get out of this one claiming it was an Act of God, but even in China that didn't fly.

Quote:

Madam Wang, 44, was struck about the head and body in the incident on Aug 25 last year.

Sat, Sep 19, 2009
The Straits Times

CHINA national Wang Shu Xiang was walking with a friend along a pavement in North Bridge Road when branches from a tree in the compound of St Andrew's Cathedral began raining down on them.

The injuries she suffered left her paralysed from the chest down, and she is now unable to move her legs.

But when she tried to get compensation from the Anglican cathedral, it initially said no. It claimed the mishap was an act of God, and beyond its control. It also blamed the landscape contractor for failing to do a proper job.

When is it an 'act of God'?

AN 'act of God' is said to have happened when an injury occurs but the cause cannot be linked through evidence to any particular person's action or conduct.

For example, if lightning hits a tree which then falls and injures a passer-by, the owner can deny liability using this defence, as the event is not reasonably foreseeable and not linked to his actions.

But if a rotting tree branch falls and hits someone, the owner of the premises cannot claim that the incident was an act of God and therefore, not his fault. The accident could have been prevented by the proper maintenance of the tree.

Source: Cathedral to pay paralysed woman

stirmantrees · 21st September 2009, 03:03 AM

thats a tough one.
almost all laurel oaks here have substantial decay and rot. man this is truly a proffesion that requires thoughtfulness, knowledge, and a general concern for the safety of other people.
what about people that do this work that dont care 2 cents about someone elses safety? makes for poor tree practices at the very least i'm sure.

where are the Laurel oaks. let me at em!!!!!!!

Eric Frei · 24th March 2010, 08:06 AM

Here's a well written article from NJ USA.

Who's responsible for the damage caused by a fallen tree? | Economy | NewJerseyNewsroom.com -- Your State. Your News.

Quote:

After the deadly storm last weekend, several people have asked me who is responsible for damage caused by falling trees. As we have tragically seen, such damage included lives as well as significant property loss.

Some of the answers will likely surprise or confound people. Generally, however, tree damage should be covered by the hazard insurance on one's home.

The owner of a given tree is generally going to be the first person one looks to for recovery of damages. Under New Jersey law, the ownership of a tree is determined by where the trunk sits, even if the branches and roots extend onto another property. An adjoining property owner is permitted, however, to cut roots and branches that extend onto that owner's property.

It is generally the law in New Jersey that a landowner will be liable for harm caused by a tree emanating from his property only if such landowner had been negligent or had engaged in activity that was unusually dangerous vis-à-vis his tree.
Private individuals are tasked with some obligations in regard to their trees. Having a tree planted on one's property is not an unusually dangerous activity (an example of an "unusually dangerous" condition on one's property would be the construction of a chemical plant). Let us examine the question of whether a tree owner has acted negligently.

According to the legal definition of negligence, one had a responsibility to take care of something and failed to do so in the manner of a reasonable person under the circumstances. There is lots of literature on who exactly is a reasonable person, but we can leave that aside for now.

Under New Jersey law, it is clear that the owner of a tree owes his neighbors a duty of care, but it will depend on the exact facts of each case as to whether a tree owner has breached his duty of care to his neighbors. Certainly, knowing that a tree was unhealthy or damaged would trigger the obligation to have the tree treated, but such knowledge is not required. If a person could easily inspect the tree and merely failed to do so, a court may find him negligent. Unfortunately, it is hard to bring general clarity to this issue, because each case will depend on the specific facts.

In the case of a tree on public lands, the issues are somewhat different. By default, homeowners may plant trees on public lands, and remain liable for damage caused by those trees. State law permits municipalities to establish a shade tree commission to take control over all trees on public lands, and once such decision has been made, the municipality assumes responsibility for all trees on public lands, even those planted by homeowners. Municipalities, however, have wide leeway as to how many resources to devote to tree maintenance.

Once the shade tree commission decision has been made, a municipality will not be liable unless the municipality's decision making was "palpably unreasonable." This relatively unclear standard (lawyers like to be unclear; lack of initial clarity afterward provides us with work) has not been interpreted often in regard to trees, but does not require regular inspections, nor does it impose liability on a town when a sick tree has been allowed to remain in place. Those suing a town would have to show that the town had actual knowledge of the condition or refused to make it possible to report dangerous trees.

Public utilities also have an interest in many trees, as saplings have a tendency to grow up and interfere with power lines. State laws and regulations require utilities to prune or remove trees near power lines. In general, utilities do not own the land over which their lines cross, but rather hold easements permitting them to run lines over the property of others. In general, it would be difficult to hold a utility liable for damage caused by a falling tree.

Unlike automobile accidents, which are not based on proving that someone is at fault, it is entirely possible that a tree owner will not be liable for damage caused by his tree. Even if someone were negligent in dealing with his or her tree, such fault would be difficult and expensive to prove, as this would require a trial and hefty legal bills for both sides.

Finally, legally, both claims for damage to property and for personal injury would be treated in the same manner.

Homeowner's insurance generally covers tree damage. (As a side point, those with significant flood damage from a storm are likely out of luck if they do not have separate flood insurance.)

If your neighbor is at fault for a falling tree, and in this last storm there is a good chance that he is not, your insurance company will be in the best position to pursue your claim.

If they deem it not worthwhile to pursue someone else for the damage, then maybe it just is not worth the cost of a legal action.

Of course, if the insurance company pays, you will be liable for a deductible and possibly for increased premiums. Unfortunately, litigation is expensive and won't be worthwhile to cover such expenses if those are all that exist.

Avi Frisch is a lawyer in Paramus and Manhattan. He can be reached at avi@avifrischlaw.com

chrisingham · 26th March 2010, 05:11 PM

That tree certainly spared that property! Thanks for sharing that image TrevMcRev. Man, had that tree fallen on the other side?! I think it's more of act of negligence than act of god when it comes to property damage due to fallen trees.

glennak · 26th March 2010, 10:28 PM

The crazyist thing I heard was a friends neigbour came to see him and said that tree is dangerous so remove it. He impolitly asked him to go away. A few day latter he told his parasite what he was told and his solicitor got all worried and told him to remove it as he would be responsible for any damage it caused even though the neigbour new nothing about trees.( He removed it himself with an electric chainsaw and a paid helper over 3 days ~3 hour job for 3 people. If he went to work he would have been 3x better off.)

supportmallone · 15th June 2010, 11:06 PM

Definitely Canterbury City Council negligence here.

Picasa Web Albums - SupportMallone

Complete lack of duty of care by council shown to private properties and the public. They imposed drainage into a cliff and refused land owners to remove damaging trees growing on a cliff top and cliff face.

Block of units took an 80 yo pensioner to the Supreme Court (tort of nuisance) - they lost but it cost the 80 yo pensioner $190,000 in legal costs. Supreme Court stated Unit owners should address and fund the damage done.

The pensioner has been told to spend another $100,000-$150,000 in legals to seek damages from the Council who had refused her and the unit owners permission to remove the damaging trees (the refusals are in writing). Even after geotechnical engineers recommended there removal to be able to fully assess the damage to the cliff.

Search on words such as Mallone, Canterbury City Council, NSW Ombudsman, maladministration, trees, stormwater drainage, SupportMallone, etc to view more on this including the Council refusal documents; NSW Ombudsman report, photos, etc.

This woman now with a debt reaching over $260,000 needs help.

Eric Frei · 15th June 2010, 11:24 PM

Bugger me, what a debacle!

Poor woman, what a bunch of useless beaurocrats .... but who legally owns and is responsible for the cliff face?

supportmallone · 15th June 2010, 11:51 PM

The woman owns approx 6% of the cliff - unit owners owned approx 92% and another proprety owner owned approx 2%. This is just the cliff area affecting the unit owners.

Unit owners believed that although the whole cliff was declared an unacceptable risk to property and people - it was solely the womans area that required tree removals and work. You see they (being 18 unit owners) believed they could ignore there own problems and just enforce the elderly woman to address hers. Mind you the estimates for her 6% went into the hundreds of thousands (approx $360,000). When she advised them she didn;t have this money she was told get your kids to pay as at the end of the day they will be paid back with the sale of your house (as in - your estate - that is when she is dead).

Nice neighbours... but at the end of the day the real blame must go to the Council who refused them all to remove the damaging trees. Especially when further investigations into Council documents revealed they were aware of these mainly fig trees damaging the cliff area as far back as the mid 1970's, and as recently as 2000. But as stated in the previous post Council continued refusing them upto at least 2004 even though geotechnical engineers declared the area unacceptable (200 times above the standards) and the trees required removal.

The Council recently stated to the woman's son, "Council is inexperienced in these matters and she should have provided proof with her applications. Maybe they should have stated that then and the photos clearly show that proof in this case was not needed - as the damage, cracks, etc were clearly visible.

Eric Frei · 16th June 2010, 10:35 AM

Even if you wanted to just leave, sell the house no-one would buy it with an action like that going on.

Seems all owners need to sue the council for negligence, like a class action.

There's this idea getting around that tree roots, like say a curtain of ficus roots, reinforce or stablize cliff faces. Not all figs are the same though, and neither cliff structures. Ultimately engineers need to make that call not arborists or greenie tree hugging fools.

9th December 2007, 10:09 AM	#2
shaggs Mature tree Join Date: May 2007 Location: sydney Posts: 422	Re: Fallen trees\| negligence vs Act of God Don't you just love it thought, when dealing with a fallen tree on a house after a storm and you get the well used comment.."I applied to have this tree removed but the council wouldn't let me!!!"

9th December 2007, 10:28 AM	#3
Eric Frei Admin - Razor sharp and independent 2 X Diploma Level 5 qualified arborist Join Date: Jan 2007 Location: Brisbane Posts: 12,820	Re: Fallen trees\| negligence vs Act of God Perfectly healthy defect-less trees fail too in storms. It's all about responsible tree ownership. However in saying that large trees I would say are more likely to fail and do more damage. So when some-one has a 200' euc close to the house, healthy, no defects it is still more likely to lose something over a 30' tree. How often you get asked if a huge tree is safe? Be very careful how you answer that to the customer. Even healthy trees fail. Defective trees, especially after it's been brought to the owners notice go down the negligence area. Most likely only persued for such in injury cases. __________________ Protect your rights to work - Join Australian Tree Association My businesses:- Qualified Brisbane Tree Lopping \| Stump Grinding Brisbane \| Brisbane - Gold Coast Consulting Arborist

9th December 2007, 03:41 PM	#4
TrevMcRev Mature Tree Join Date: Feb 2007 Location: Melbourne, Victoria, Australia. Posts: 1,605	Re: Fallen trees\| negligence vs Act of God Spotted this large failure yesterday. Must have not long happened, police had road blocked off as tree had fallen on a car stopped at traffic lights. When i got there the car was gone but i were told the female driver was not injured. I went in past the taped off area to get a closer look at the tree failure. Nobody questioned me, but like treemachine i were ready with my response! The tree had a major low stem cut/torn off i estimate 5+ years ago. The townhouses there are probly 5-10 years old so likely was the work of the builders at the time for clearance reasons. The point of failure was badly decayed. Absolutely no damage to the uninformed home/tree owners property, so they get away with a free removal probly under insurance Attached Thumbnails

9th December 2007, 04:01 PM	#5
newguy18 Part of the Furniture Join Date: Jun 2007 Location: orlando,fl Posts: 4,977	Re: Fallen trees\| negligence vs Act of God Man the next thing you know people or insurance companies are gonna have trees cut back to where they can't hit the neighbors property just there own and then after the trees get butchered and rot and fail we're still gonna have to put up with the same bs on a smaller scale.I have always advised thought on landscapes that small trees and shrubs be planted instead of tall growing trees because I think they would stand a better chance of reaching maturity unlike a monster sized tree un the same area. __________________ Have your say join us today. old schooler

11th December 2007, 04:18 AM	#6
DBS Semi-mature vigorous tree Join Date: Jul 2007 Location: CT USA Posts: 182	Re: Fallen trees\| negligence vs Act of God Here is a job i had been called to do.... funny how after i cleaned up the trees he then says oh...your a building and remodeling contractor?? i said yup and so the fun began...see second link, i usually have a lil fun when camera is around.. Fallen Trees For No Reason?!?!? Remodeling job Due to trees... :-) __________________ Stihl MS 200T Stihl MS 361

11th December 2007, 04:31 AM	#7
newguy18 Part of the Furniture Join Date: Jun 2007 Location: orlando,fl Posts: 4,977	Re: Fallen trees\| negligence vs Act of God Dang you got that figured out when treework is slow you remodel.Do you do a lot of insurance work? __________________ Have your say join us today. old schooler

11th December 2007, 09:12 AM	#8
DBS Semi-mature vigorous tree Join Date: Jul 2007 Location: CT USA Posts: 182	Re: Fallen trees\| negligence vs Act of God Ha-ha yeah kind of. Let?s just say there pretty much isn?t anything I can?t or won?t do. I have my hands in all aspects of house "work" I also own a landscape company that you guessed it...cleans the site after tree removals... I am also capable of plumbing, electrical, HVAC, masonry, excavation, yet I am a builder by trade. But when you think about where all (well most) of my material comes from, how could I not have an interest in tree work. I don?t do many insurance jobs and they are kind when they do come along. and believe it or not the insurance companies are not wanting to pay AT ALL for trees/limbs that fall and damage your property...round here it truly is an "Act of God" Matter of fact I was a victim my self... Crime Scene Plus the Take Down PLEASE I am not an Arborist but yet an Enthusiast. I AM requesting suggestions to better my habits as well as Praise for any if any that are present. Pics don?t always tell the whole story, but I am definitely aware of some breaches of safety. Kind Regards, Daryl -Daryl __________________ Stihl MS 200T Stihl MS 361

11th December 2007, 09:49 AM	#10
TREE-SURFER Mature tree Join Date: Feb 2007 Location: Isle of Man,UK. Posts: 337	Re: Fallen trees\| negligence vs Act of God This image and the others, are fraught with tell tale signs of why it failed,as TrevMcRev has pointed out. Decay from the large wound to the side (or top as we see it in the picture), was probably performed by the home owner, or like he says, the builders, judging by the capacity of the cut, and the denseness of the crown. It was more than likely easier for them to 'Reduce' the size of the tree for their benefit by cutting off what was the balancing factor for the tree itself, promptly putting passers by and motorists in danger, albeit, in the future. I would challenge to find out who and when this cutting occurred and file for damages against the owner/builders, for presenting a hazardous tree in the first place and for not having it rectified. It is clearly obvious, that uneven weight, decay and massive compression were the cause for failure. *'Negligence'* __________________ The Aerial Arborist Isle of Man Tree Surgeon\| All Aspects of Tree Work What experts say about TOPPING

11th December 2007, 10:01 AM	#11
TREE-SURFER Mature tree Join Date: Feb 2007 Location: Isle of Man,UK. Posts: 337	Re: Fallen trees\| negligence vs Act of God Act of God Not to sound too impermanent, but, Billy Connelly once asked, " who is God, if he exists, then he is responsible for criminal damage. If he does not exist, then surely the insurance company would have to pay. Failing that, would the Church cough up the dough ? " Good point or not? __________________ The Aerial Arborist Isle of Man Tree Surgeon\| All Aspects of Tree Work What experts say about TOPPING

11th December 2007, 07:57 PM	#12
Eric Frei Admin - Razor sharp and independent 2 X Diploma Level 5 qualified arborist Join Date: Jan 2007 Location: Brisbane Posts: 12,820	Re: Fallen trees\| negligence vs Act of God HAhaha I loved that movie, The Man Who Sued God, a classic. He's a funny bugger, love his wit. __________________ Protect your rights to work - Join Australian Tree Association My businesses:- Qualified Brisbane Tree Lopping \| Stump Grinding Brisbane \| Brisbane - Gold Coast Consulting Arborist

14th December 2007, 11:15 PM	#14
treeseer Former Member Join Date: Jul 2007 Location: SE USA Posts: 753	Re: Fallen trees\| negligence vs Act of God Great pics Trev, well-documented negligence. The tree stood long enough to market the condos; job well done for the builder. If the driver's insurer wanted they could make a heck of a case. Lucky the lady was ok.

24th January 2008, 06:13 PM	#15
ozinus Former Member Join Date: Jan 2008 Location: Brisbane Posts: 38	Re: Fallen trees\| negligence vs Act of God not sure of the laws here in oz but in New Hampshire, in the event of tree failure unless the tree had been appropriately appraised by a consulting arborist and a formal document pertaining to this had been lodged then each property was responsible for the portion of tree that ended up in their property after the failure. I think this is a fantastic rule because it brings conjoining properties together to be concerned about trees within their immediate area not just what's overhanging their fence.

24th January 2008, 09:50 PM	#16
Eric Frei Admin - Razor sharp and independent 2 X Diploma Level 5 qualified arborist Join Date: Jan 2007 Location: Brisbane Posts: 12,820	Re: Fallen trees\| negligence vs Act of God Have you ever been asked to appraise a neighbours tree amid hostility and not allowed access to the property that owns the tree? Makes it difficult to properly assess the tree. Not all neighbours like threatening trees and often the tree owner prefers ignorance, then it becomes an "act of god" for victims to claim upon their own insurance. __________________ Protect your rights to work - Join Australian Tree Association My businesses:- Qualified Brisbane Tree Lopping \| Stump Grinding Brisbane \| Brisbane - Gold Coast Consulting Arborist

24th January 2008, 09:58 PM	#17
ozinus Former Member Join Date: Jan 2008 Location: Brisbane Posts: 38	Re: Fallen trees\| negligence vs Act of God Much like our laws of craziness. If you are thought crazy and someone identifies that you may be like it or not you will be tested. And so In NH if I suggest that your tree may be structurally unsound an Arborist must look at it!! Like it or not.... In any case if it is not looked at all parties affected share the burden.

24th January 2008, 10:01 PM	#18
Eric Frei Admin - Razor sharp and independent 2 X Diploma Level 5 qualified arborist Join Date: Jan 2007 Location: Brisbane Posts: 12,820	Re: Fallen trees\| negligence vs Act of God LOL You need to read this thread. Ignore it then claim insurance! __________________ Protect your rights to work - Join Australian Tree Association My businesses:- Qualified Brisbane Tree Lopping \| Stump Grinding Brisbane \| Brisbane - Gold Coast Consulting Arborist

24th January 2008, 10:12 PM	#19
ozinus Former Member Join Date: Jan 2008 Location: Brisbane Posts: 38	Re: Fallen trees\| negligence vs Act of God Yeah similar, However at the end of the day you as a home owner will spend many dollars a year on home upkeep if you do not that is a negligence and you will pay a more expensive price later. Tree companies will happily take between 2 and 3 thousand dollars for a removal yet I have not seen one Qld marketing campaign advising customers that for $ 2000 once a year they can monitor and facilitate a garden with 3 men to visit all needs and advise proactively of the things that will be necessary in years to come. Active management of clients properties is sadly lacking in this state. As I knopw none of you I cannot quantify this to yourselves individually other than I have not seen those sorts of campaigns since my return. Education is up to us they will not teach themselves.

29th January 2008, 05:04 PM	#21
mdvaden Former Member Join Date: Feb 2007 Location: Oregon Posts: 397	Re: Fallen trees\| negligence vs Act of God I can't wait to go into town when the snow clears, like tomorrow, and make sure the historic Catalpa I'm rooting for is still standing !! Another Certified Arborist said he'd cull it and that it's loaded with problems like severed roots. I told him that one dead 4" root was cut, but asked him how he ascertained "roots" plural were cut or severed. No answer - sort of mumbled something and walked away. But it's not abuse free. Still, it appears to have remained at the same angle for at least 3 or 4 decades, so I'm hoping it will hang in there. Seems that one important thing that gets missed on many trees, is at least having them looked at once per year to see how they are doing and if something has changed either good or bad.

21st September 2009, 03:03 AM	#23
stirmantrees Mature tree Join Date: Apr 2009 Location: oviedo, fl Posts: 469	Re: Fallen trees\| negligence vs Act of God thats a tough one. almost all laurel oaks here have substantial decay and rot. man this is truly a proffesion that requires thoughtfulness, knowledge, and a general concern for the safety of other people. what about people that do this work that dont care 2 cents about someone elses safety? makes for poor tree practices at the very least i'm sure. where are the Laurel oaks. let me at em!!!!!!!

26th March 2010, 05:11 PM	#25
chrisingham Former Member Join Date: Mar 2010 Location: London Posts: 27	Re: Fallen trees\| negligence vs Act of God That tree certainly spared that property! Thanks for sharing that image TrevMcRev. Man, had that tree fallen on the other side?! I think it's more of act of negligence than act of god when it comes to property damage due to fallen trees.

26th March 2010, 10:28 PM	#26
glennak Semi-mature vigorous tree Join Date: Mar 2010 Location: Melbourne Posts: 179	Re: Fallen trees\| negligence vs Act of God The crazyist thing I heard was a friends neigbour came to see him and said that tree is dangerous so remove it. He impolitly asked him to go away. A few day latter he told his parasite what he was told and his solicitor got all worried and told him to remove it as he would be responsible for any damage it caused even though the neigbour new nothing about trees.( He removed it himself with an electric chainsaw and a paid helper over 3 days ~3 hour job for 3 people. If he went to work he would have been 3x better off.)

15th June 2010, 11:06 PM	#27
supportmallone Sappling Join Date: Jun 2010 Location: Sydney Posts: 9	Re: Fallen trees\| negligence vs Act of God Definitely Canterbury City Council negligence here. Picasa Web Albums - SupportMallone Complete lack of duty of care by council shown to private properties and the public. They imposed drainage into a cliff and refused land owners to remove damaging trees growing on a cliff top and cliff face. Block of units took an 80 yo pensioner to the Supreme Court (tort of nuisance) - they lost but it cost the 80 yo pensioner $190,000 in legal costs. Supreme Court stated Unit owners should address and fund the damage done. The pensioner has been told to spend another $100,000-$150,000 in legals to seek damages from the Council who had refused her and the unit owners permission to remove the damaging trees (the refusals are in writing). Even after geotechnical engineers recommended there removal to be able to fully assess the damage to the cliff. Search on words such as Mallone, Canterbury City Council, NSW Ombudsman, maladministration, trees, stormwater drainage, SupportMallone, etc to view more on this including the Council refusal documents; NSW Ombudsman report, photos, etc. This woman now with a debt reaching over $260,000 needs help.

15th June 2010, 11:24 PM	#28
Eric Frei Admin - Razor sharp and independent 2 X Diploma Level 5 qualified arborist Join Date: Jan 2007 Location: Brisbane Posts: 12,820	Re: Fallen trees\| negligence vs Act of God Bugger me, what a debacle! Poor woman, what a bunch of useless beaurocrats .... but who legally owns and is responsible for the cliff face? __________________ Protect your rights to work - Join Australian Tree Association My businesses:- Qualified Brisbane Tree Lopping \| Stump Grinding Brisbane \| Brisbane - Gold Coast Consulting Arborist

15th June 2010, 11:51 PM	#29
supportmallone Sappling Join Date: Jun 2010 Location: Sydney Posts: 9	Re: Fallen trees\| negligence vs Act of God The woman owns approx 6% of the cliff - unit owners owned approx 92% and another proprety owner owned approx 2%. This is just the cliff area affecting the unit owners. Unit owners believed that although the whole cliff was declared an unacceptable risk to property and people - it was solely the womans area that required tree removals and work. You see they (being 18 unit owners) believed they could ignore there own problems and just enforce the elderly woman to address hers. Mind you the estimates for her 6% went into the hundreds of thousands (approx $360,000). When she advised them she didn;t have this money she was told get your kids to pay as at the end of the day they will be paid back with the sale of your house (as in - your estate - that is when she is dead). Nice neighbours... but at the end of the day the real blame must go to the Council who refused them all to remove the damaging trees. Especially when further investigations into Council documents revealed they were aware of these mainly fig trees damaging the cliff area as far back as the mid 1970's, and as recently as 2000. But as stated in the previous post Council continued refusing them upto at least 2004 even though geotechnical engineers declared the area unacceptable (200 times above the standards) and the trees required removal. The Council recently stated to the woman's son, "Council is inexperienced in these matters and she should have provided proof with her applications. Maybe they should have stated that then and the photos clearly show that proof in this case was not needed - as the damage, cracks, etc were clearly visible.

16th June 2010, 10:35 AM	#30
Eric Frei Admin - Razor sharp and independent 2 X Diploma Level 5 qualified arborist Join Date: Jan 2007 Location: Brisbane Posts: 12,820	Re: Fallen trees\| negligence vs Act of God Even if you wanted to just leave, sell the house no-one would buy it with an action like that going on. Seems all owners need to sue the council for negligence, like a class action. There's this idea getting around that tree roots, like say a curtain of ficus roots, reinforce or stablize cliff faces. Not all figs are the same though, and neither cliff structures. Ultimately engineers need to make that call not arborists or greenie tree hugging fools. __________________ Protect your rights to work - Join Australian Tree Association My businesses:- Qualified Brisbane Tree Lopping \| Stump Grinding Brisbane \| Brisbane - Gold Coast Consulting Arborist

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