JMD Legal-Ease | Timber! Who Pays When a Tree Falls?
Those who have spent any time in North Carolina know it is dotted with towering, beautiful trees. They provide scenery, shade, entertainment, timber, snacks, wildlife housing, etc. Each fall, visitors from all over travel to the state to experience the annual changing of the leaves. Each spring, they bloom to welcome the onset of warm weather.
However, the reality is North Carolina is far from a tree-friendly State. Mother Nature mercilessly culls the tree population with severe thunderstorms, hurricanes, tornadoes, floods, ice storms, and even earthquakes.
If you drive through the streets of Charlotte, you will notice sticky belts wrapped around trees in efforts to deter destructive, leaf eating worms. Termites, beetles, and other wood chewing insects thrive in our forgiving climate. The largest North American rodent, the beaver, happily chews wood and cause millions of dollars of damage to the state every year.Finally, North Carolinians do a number on trees for their own personal and business purposes (for example, North Carolina harvests the second largest number of Christmas trees each year).
But, what happens when one of these majestic natural structures rooted on your neighbor’s property topples over and, in one last act of Braveheart-like defiance for its plight, shakes its limbs at the sky and takes out a car, house, landscaping, or worse, hurts you or your family?
Who is Responsible?
In the past, the law concerning a property owner’s responsibility for natural conditions1 occurring on her land has been that she is generally not liable for physical harm caused to outsiders, even if the conditions may be highly dangerous or inconvenient to neighbors.
It’s important to note that this rule was developed at a time when most land was generally raw and undeveloped, so it would have been unduly taxing and unrealistic to inspect the expanse of property to ensure safety.
But With Every Rule, There Are Exceptions
For example, an owner of urban land who fails to exercise reasonable care about the condition of his tree might be subject to liability to persons using an adjacent public highway who are injured by the tree falling. That exception derived from a recognized distinction between urban and rural settings – that is, a rural landowner had no duty to address the safety of his property when such a duty would exist for an urban landowner.
Of course, much has changed since that time when urban and rural areas were distinct and separate. Nowadays, that line frequently is blurred. In light of increased urbanization of communities, the exception has become more the rule.2
Currently, the general analysis of allocating liability between a landowner and outsiders for damage resulting from a fallen tree is largely based upon a negligence standard. A tree falls, property and/or individuals are injured, and liability is assessed.
Generally, the landowner has a duty of common prudence and must exercise reasonable care to maintain his property and those conditions existing on it, such as trees. If the landowner had no actual or constructive knowledge of a defect in the tree which led to its collapse, he is not responsible for the resulting damage.
As an example of this evolved view, the North Carolina Court of Appeals recently considered a situation where a tree located on private property fell on and severely injured someone standing on a boat floating on a public waterway. The Court determined that a landowner has a duty to exercise reasonable care regarding natural conditions on his land which lies adjacent to a public highway in order to prevent harm to travelers using the highway.
That reasonable care means that liability exists only if the landowner had actual or constructive notice of a dangerous natural condition. For the injured party to prove the landowner liable, he needed to show that the tree constituted a dangerous condition to the travelers of the adjacent public road and the landowner had actual or constructive notice of the dangerous condition and failed to eliminate it.
The Devil’s in the Details
However, in North Carolina this is not the complete analysis. Since courts have applied a negligence-based standard to the landowner, certain defenses may be available for the landowner.
An example of this occurred back in the mid 1960s. The McGee Family owned property in Catawba County (the McGee Property) in absentee fashion (they apparently did not visit the property frequently). They sold a neighboring piece of land to a third party who later conveyed the parcel (the Rowe Property) to the Rowe Family.
A large oak tree, existing through natural growth, was located on the McGee Property along the property line with the Rowe Property. At the time the McGee Family sold the Rowe Property, the oak tree was hollow, partially rotten, and leaned in such a way to suggest that if it fell, it would land on the Rowe Property. The McGee Family was aware of the tree’s condition when it sold the Rowe Property.
The tree subsequently fell and damaged the Rowe Property. The Rowe Family and their insurance carrier filed suit against the McGee Family seeking relief for the damage. North Carolina appellate courts had not yet considered the issue and there was not a consensus from other states.
Based on the above facts, the Court determined that “where a landowner knows that he has a tree on his property which is in a dangerous condition and which is likely to fall and injure the property of an adjoining landowner, he has a duty to eliminate such danger.”
But, that was not the entire story. Evidence also showed that approximately eight to twelve months prior to the tree’s collapse, the Rowe Family discovered the tree’s condition and they obtained permission from the McGee Family to cut it down. Obviously, the Rowe Family did not follow through.
As a result of these additional facts, the Court carefully expanded its consideration beyond the actions of just the McGee Family. Specifically, it recognized that a jury could interpret from these facts that the Rowe Family led the McGee Family, who were absentee owners of the McGee Property, to believe that the tree had been cut down and the danger eliminated.
Thus, by the Rowe Family being aware of the danger, requesting and receiving approval from the McGee Family to remove the danger, then failing to do so, a jury could determine that they contributed to the problem negating their claims for relief. In North Carolina, if a claimant of negligence contributes to the underlying problem, they can be barred from obtaining relief.
Acts of God
A separate and common defense for landowners of fallen trees is pretty straightforward – sometimes things just happen.
There is a little provision within the law called “vis major.” This premise is basically defined as a loss that results from a natural cause without human intervention and that could not have been prevented by reasonable care – an act of God. This is the situation when Mother Nature makes an unwelcome visit and leaves in her wake downed trees causing property damage.
In that situation, assuming the tree owner had exercised reasonable care in maintaining the tree and did not have actual or constructive knowledge of any issues, the general rule is the person on whose property the tree lands (be it real estate, a car, or an appendage) shoulders the cost.
So, what does this mean for us North Carolinians attempting to accommodate our beautiful treescapes with impending disaster and liability? Based on the existing law of our state and the general perspective offered by other jurisdictions, the typical urban landowner needs to pay attention to both their landscaping and that of their neighbors.
Courts have noted that the fairly minor expenditures in time and money necessary to inspect and secure trees in a developed area pale in comparison with the increased danger and possible damages caused by a fallen tree. What if you or your property softens the landing of your neighbor’s felled tree?
North Carolina and other state courts have recognized certain evidence of the tree’s prior condition that may be used to show whether the tree owner was negligent in exercising reasonable care. This includes photos of the tree, reports by tree professionals, testimony of neighbors and others who frequently had visual access to the tree, examples of insects found in or on the tree, pieces of the tree itself, correspondence between neighbors concerning the tree, and the location of the tree (near a well traveled walkway or playground, as examples).
But remember, particularly in North Carolina, which continues to recognize contributory negligence as shown by the McGee/Rowe story above, evidence that the recipient of the fallen tree knew of the imminent danger and did not make efforts to resolve the situation may negate an otherwise viable claim that the tree owner is responsible.
Finally, no human may be at fault. Mother Nature is just as capable of leveling destruction as she is creating beautiful scenery.
1 An important distinction exists on this topic between a natural condition and one artificially created by a landowner. Generally, a landowner who changes the condition of the land in such a way that increases the risk of injury to others (planting trees, for example) will be subject to an increased standard or care should harm occur.
2 Some courts continue to recognize the old rule of nonliability of land owners for natural conditions existing in rural areas where parcels of land are substantially larger than their urban counterparts.