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Who's responsible for the damage caused by a fallen tree?

tree031510_optBY 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-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 This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

 
Comments (5)
5 Monday, 12 November 2012 10:09
Elaine Matlaga
This law must be changed. If the owner of the tree was made responsible for any property damage or personal injury to another then, the tree owner would [hopefully] maintain the tree. I can understand if only twigs or branches fell then, of course, you would just discard them yourself. But, when 50'+ trees have not been properly maintained by the owner and then they fall on someone elses property and cause major damage, why should the neighbor take such a large financial loss. My neighbors 60' tree fell on my house during Hurricane Sandy. The tree went through my roof and broke. The broken piece fell down my siding, taking the siding with it. Then the tree fell on my central a/c unit reducing it to rubble. I have very good homeowners insurance and have a $1,000.00 deductible. My insurance will only pay $500.00 to remove the tree. I paid thousands. My roof has to be repaired and I don't think insurance will cover that completely either. My a/c unit has to be replaced and I will only get the depreciated value for that. I will suffer a financial loss of approximately $20,000.00. It just doesn't seem right. To add insult to injury while the tree contractor was removing the neighbors tree[s] from my yard, the neighbor told our contractor that he had gotten saw dust on his property and if he didn't clean it up, he was calling the police! They didn't even inquire to see if our family was alright. The law must be changed. Tree owners must be held responsible for damage their tree has caused.
4 Saturday, 10 November 2012 18:33
Tom C in Union Beach
I know it is human nature to look for someone to blame, but let's be honest. All the trees that fell during Sandy, or shed major limbs, probably existed long before people bought the houses on adjacent properties and were not in any condition that threatened anyone's property. Moreover, as the yeas go buy we enjoy the shade these trees provide, and the reduced costs of energy due to being in the shade, etc.

I have a vacant (but owned) lot next to my property with a really nice tree that is technically not mine, and during Sandy some major limbs came down and did a few hundred in damage to my gazebo -- and also came down on another neighbors roof (no damage apparent) and another neighbors shed (minor damage -- probably less than what I got).

I didn't think twice about it -- it came down on my property, I've enjoyed it over the years, so I started to clean it up. As I was cutting the major limb that spanned all three properties, the neighbor with the shed came out to object.

He thought "they" would send someone to handle it. Who is "they"? He asked if I had called my insurance yet. I asked why? The damage was well under my deductible, and it isn't legally my tree. I explained the tree is on another property. He said he wanted their insurance to come out and remove it.

I cut the fallen limb at the property line, and cut the part on my property into pieces and hauled it away. As I did that, the rest of the limb repositioned itself so that it was not longer touching his shed.

I would have gladly came over to the other side of the fence and continued cutting, but since he objected I can only legally cut to my property line. He will have to figure out how to get "them" to come out and deal with it.

His shed has about $200 of damage at most. His insurance deductible will be $500 minimum, probably $1000. Why he wanted to leave that limb lying on his structure where more damage could happen -- or personal injury -- is beyond me.

Had the tree crushed my home, or car, etc. I'd have picked up the phone to call my insurance. It did minimal damage, so I figure it is just simplest to deal with it. Not sure why people have to look for other people to handle what comes down on their property in a hurricane.

The day after the storm when I drove around I saw dozens of those backyard trampolines scattered all over the neighborhood. Now that, I think, would be fair game to hold the property owner where that originated from liable. It is expected in a storm that items like that will be secured.

A tree, you cannot reasonably predict if the roots will give, or branches will break, etc. If there was no reasonable way to foresee that condition existed and inform the property owner to remedy it, then negligence has not occurred.

Save your neighborly relations and file claims with your own insurance, suck up the deducible, and if that seems too much to bear then talk to the many, many people that are completely homeless as a result of this natural disaster, and wish their biggest problem was a broken fence, deck, or crushed car.
3 Monday, 05 November 2012 08:53
Adubb
This law is such crap, my neighbors tree fell in my yard. crushed my fence and part of my deck, hasn't even said sorry. She only ran over to tell me that she was responsible for what was in her yard, which is stump, the rest of the 30FT tree is in my yard.
2 Monday, 05 November 2012 08:53
Adubb
This law is such crap, my neighbors tree fell in my yard. crushed my fence and part of my deck, hasn't even said sorry. She only ran over to tell me that she was responsible for what was in her yard, which is stump, the rest of the 30FT tree is in my yard.
1 Wednesday, 31 October 2012 01:56
mcgrantham
so because this neighbor who knew( as the whole street) that this leanning trees(3) would hit a house when sandy hit us he is not responsible at all? so this 70+ year old lady who barly makes 16 thousand a year has to come up with $10.000+ of her money to cover her insurance deductable to cover for house damage from this guys trees? thats bull! she cant and shouldnt have to come up with the money, law need to be changd.

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