Fallen trees| negligence vs Act of God

Ekka · 7th December 2007, 11:56 PM

This topic is common, especially when there's storms etc.

Quote:

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 more ...

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 · 8th December 2007, 03:09 PM

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!!!"

Ekka · 8th December 2007, 03:28 PM

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 · 8th December 2007, 08:41 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 · 8th December 2007, 09:01 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 · 10th December 2007, 09:18 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 · 10th December 2007, 09:31 AM

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

DBS · 10th December 2007, 02:12 PM

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 · 10th December 2007, 02:21 PM

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 · 10th December 2007, 02:49 PM

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 · 10th December 2007, 03:01 PM

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?

Ekka · 11th December 2007, 12:57 AM

HAhaha

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

TREE-SURFER · 11th December 2007, 08:19 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, 04:15 AM

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 · 23rd January 2008, 11:13 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.

8th December 2007, 03:09 PM	#2 (permalink)
shaggs Afterburner is shakin' Join Date: May 2007 Location: sydney Posts: 459	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!!!"

8th December 2007, 03:28 PM	#3 (permalink)
Ekka Eric Frei Administrator - Brisbane L5 (Dip) Hort Cert III Arb + some Join Date: Jan 2007 Location: Brisbane Posts: 5,669	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. __________________ Remember to use the "search" function, if you have answers/questions post them so everyone can benefit. Free Tree and Green Industry Link Directory Qualified Brisbane Tree Lopping Brisbane Tree Care, Consultations and Arborist Reports Forum Sponsors

8th December 2007, 09:01 PM	#5 (permalink)
newguy18 Tree World Icon Join Date: Jun 2007 Location: Live Oak Florida home of the crapiest trees you will ever see. Posts: 2,192	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. http://www.youtube.com/watch?v=Xzkd_m4ivmc http://www.youtube.com/watch?v=Xzfzb...eature=related http://www.youtube.com/watch?v=x-OqK...eature=related

10th December 2007, 09:18 AM	#6 (permalink)
DBS Fly'n Join Date: Jul 2007 Location: CT USA Posts: 196	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

10th December 2007, 09:31 AM	#7 (permalink)
newguy18 Tree World Icon Join Date: Jun 2007 Location: Live Oak Florida home of the crapiest trees you will ever see. Posts: 2,192	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. http://www.youtube.com/watch?v=Xzkd_m4ivmc http://www.youtube.com/watch?v=Xzfzb...eature=related http://www.youtube.com/watch?v=x-OqK...eature=related

10th December 2007, 02:12 PM	#8 (permalink)
DBS Fly'n Join Date: Jul 2007 Location: CT USA Posts: 196	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

10th December 2007, 02:49 PM	#10 (permalink)
TREE-SURFER Afterburner is shakin' Join Date: Feb 2007 Location: Isle of Man,UK. Posts: 401	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 Andy@Aerial-Arborist.co.uk What experts say about TOPPING

10th December 2007, 03:01 PM	#11 (permalink)
TREE-SURFER Afterburner is shakin' Join Date: Feb 2007 Location: Isle of Man,UK. Posts: 401	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 Andy@Aerial-Arborist.co.uk What experts say about TOPPING

11th December 2007, 12:57 AM	#12 (permalink)
Ekka Eric Frei Administrator - Brisbane L5 (Dip) Hort Cert III Arb + some Join Date: Jan 2007 Location: Brisbane Posts: 5,669	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. __________________ Remember to use the "search" function, if you have answers/questions post them so everyone can benefit. Free Tree and Green Industry Link Directory Qualified Brisbane Tree Lopping Brisbane Tree Care, Consultations and Arborist Reports Forum Sponsors

14th December 2007, 04:15 AM	#14 (permalink)
treeseer Afterburner is shakin' Join Date: Jul 2007 Location: SE USA Posts: 410	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. __________________ Guy Meilleur \| Forensic Arborist \| Better Tree Care

23rd January 2008, 11:13 PM	#15 (permalink)
ozinus Banned Join Date: Jan 2008 Location: Brisbane Posts: 59	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.