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BY AVI FRISCH
NEWJERSEYNEWSROOM.COM
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-Ã -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 This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
