Liability of Landowner When Tree Falls Onto Adjoining Landowner’s Property
One issue that sometimes arises between adjoining landowners is responsibility when one landowner’s tree falls onto the property of the adjoining landowner and damages either the adjoining landowner’s property or person. In general, a landowner is not liable for harm caused to others outside of his land by a natural condition occurring on his land. This article discusses this situation and how courts currently interpret this issue.
Generally, a possessor of land is not liable for physical harm caused to others outside of his land by a natural condition occurring on his land. Natural condition of the land includes the natural growth of trees, weeds, and other vegetation upon the land. However, a possessor of land in urban areas is subject to liability to people using a public highway for physical harm resulting from the landowner’s failure to exercise reasonable care to prevent unreasonable risk of harm arising from the condition of trees on his land near the highway. A landowner is required to exercise no more than reasonable care to prevent an unreasonable risk of harm to those on the highway arising from the condition of his trees.
If a possessor of land has reason to know that a public nuisance caused by natural conditions exists on his land near a public highway, the landowner is subject to liability for failure to exercise reasonable care to prevent an unreasonable risk of harm to those using the highway. The comments to the Restatement (Second) of Torts state that the landowner has no duty to inspect trees for a purpose of discovering a dangerous natural condition. However, if the landowner knows of the condition, or has reason to know of it, he has a duty to act reasonably to remove the dangerous condition. The illustrations to the Restatement use the following example: "A owns a home on a six acre tract on a heavily traveled highway in a moderately settled area. A tree next to the highway is struck by lightning and dies. A does nothing to remove the tree, though he sees it every day in going to work. Over a year later the tree falls on B’s car, severely damaging it. A is subject to liability to B."
States’ Interpretations of the Restatement
Although the Restatement draws a distinction between natural and artificial conditions occurring on a landowner’s property, courts in several states are increasingly using ordinary negligence principles to determine a landowner’s liability for harm caused by a condition on his land. Sprecher v. Adamson Companies, 30 Cal 3d 358, 364 (Cal. 1981). In Sprecher, the Court stated that in recent years at least 13 states and the District of Columbia began applying ordinary negligence principles in determining a landowner’s liability for harm caused by a natural condition on his land. In addition, several states have adopted other theories of liability for these situations, such as nuisance, trespass, and the Louisiana Supreme Court applied strict liability when a tree fell onto an adjoining landowner’s yard. See Cheryl M. Bailey, Tree or Limb Falls onto Adjoining Private Property: Personal Injury and Property Damage Liability, 54 ALR 4th 530 (1987).
Nebraska and Iowa
The Omaha Municipal Code states that it is unlawful for any landowner to allow to stand on his property any dead tree, any dead part of a tree, any fatally diseased or structurally weak tree, or any structurally weak part of a tree which is a menace to public safety, or which endangers any building or other property. Omaha Mun. Code § 37-11 (1980). While applying this code section, the Nebraska Supreme Court failed to apply a theory of strict liability, but rather applied the ordinary principles of negligence. See McGinn v. City of Omaha, 217 Neb. 579, 581 82 (1984). In McGinn, Peter McGinn was driving his car during a storm when he stopped his car due to high winds and rain, and a large limb from a tree struck his car, rendering McGinn a quadriplegic. 217 Neb. at 580. The trial court awarded McGinn $5,000,000 in damages, finding that the City was negligent in failing to inspect the tree for disease and decay, thereby violating the City Ordinance. Id. at 580-81. In reversing the trial court’s decision and dismissing the action, the Nebraska Supreme Court stated that the City had no actual knowledge of the condition of the tree, and therefore, McGinn was required to prove the City had constructive notice or knowledge of the condition of the tree. Id. at 582.
Therefore, the Nebraska Supreme Court adopted the recent trend that other states had previously adopted that a landowner must have constructive or actual knowledge of the defective condition of a tree in order for the landowner to be liable under a negligence claim. The court stated that the fact that a tree falls does not by itself prove negligence. Id. at 587. The court then cited Pietz v. City of Oskaloosa, 250 Iowa 374, 379 (1958) where the Iowa Supreme Court stated "[i]t is generally held that a plaintiff must prove that the defendant failed to observe visible signs of decay, and that if the defendant had made a careful inspection upon observance of these signs, he should have known that the extent of decay warranted removal of the tree." Therefore, the Nebraska Supreme Court adopted the rule that negligence is the standard to be judged in these situations, and just because a tree falls does not mean that a defendant lacked reasonable care.
Finally, although the Nebraska Supreme Court did not make a definitive ruling on this issue, it did state that some courts impose a higher burden of proof upon a plaintiff when weather conditions are unfavorable. Id. at 592. In this case, there were strong winds at the time of the accident that were estimated to be between 75 and 100 miles per hour.
It appears that the Nebraska Supreme Court has adopted the modern rule that a landowner will only be found negligent for his tree falls onto an adjoining landowner’s property and causing damage if the landowner had actual or constructive notice that the tree was decayed or defective, and the landowner failed to take any action to correct this decay or defective condition.
Iowa similarly applies a standard of negligence when determining liability in these situations. The Iowa Supreme Court has previously stated that the rule in Iowa is that an individual who maintains a tree on his property owes a duty to avoid injuring persons on adjoining premises by permitting a tree to become so defective and decayed that it will fall and cause damage to the adjoining property. The Iowa Supreme Court has stated that the corollary rule is that proof of a landowner’s actual or constructive knowledge of decay or defect is a condition precedent to liability, and that a landowner has a duty to use reasonable care to prevent unreasonable risk of harm to an adjoining landowner from diseased or otherwise unsafe trees. The court, however, has limited that liability to situations in which it was established that the landowner had actual or constructive notice of a tree’s defective condition.
Although the Restatement (Second) of Torts differentiates between artificial and natural conditions occurring on land, the recent trend in states is to disregard this distinction and apply ordinary negligence rules to landowners. Both Nebraska and Iowa hold that a landowner has a duty of reasonable care to correct the hazards of a defective or decaying tree on the landowner’s property. However, in order for a landowner in Nebraska or Iowa to be liable for damage done from a falling tree to an adjoining landowner’s property, that landowner must have had actual or constructive notice that the tree was decayed or otherwise in a defective condition. Therefore, if a healthy tree falls onto a neighbor’s yard during a storm, the tree’s owner will not be liable for any damages because the tree was not in a defective condition. Additionally, even if a tree falls onto a neighbor’s yard that is deemed defective, the landowner will only be liable for damages if the landowner knew the tree was defective or should have known through reasonable inspection that the tree was defective.
by Max J. Burbach