Only God can make a tree…only man can make a case out of it

Scenario one

Your neighbor’s oak tree falls on your house during a wind storm causing $100,000 worth of damage to your home. Your neighbor, who you never liked when he moved in five years ago, refuses to pay for any of the repairs.

Scenario two

You are the owner of an expanding processing facility located in an industrial park and you are proud of the fact that you are “going green,” utilizing solar energy, two electric powered vehicles and a geothermal heating system. Your “green-ness” includes numerous elm trees, one of which has a large limb that overhangs a public sidewalk and breaks off and injures a pedestrian on the sidewalk during a snow storm.

Damages, injuries and other claims caused as a result of falling trees and tree limbs are a major source of litigation. Years ago, property owners were, generally, not liable for damage or injuries caused by falling trees. The law has changed and the bar raised, creating greater liability upon property owners. Some of the factors which the courts have evaluated in determining whether a property owner is liable have included the following:

• the reasonable foreseeability of the injury;
• the reasonable likelihood of the injury;
• the magnitude of the burden of eliminating the risk; and
• the consequences of placing that burden on the defendant.

A general rule of thumb cited by many courts is that “a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.” That “reasonable care” component includes an obligation of inspection.

Even if a defective condition is not readily apparent to a layperson, the property owner may still be liable if the condition may constitute a potentially hazardous condition to pedestrians. In a case from 2010, where the property in question was owned by a not for profit corporation and a large tree limb which overhung a sidewalk fell and injured the plaintiff, the court found that the property owner was liable in spite of the absence of any apparent evidence that the limb was defective. The court found that neither the absence of actual knowledge nor constructive knowledge of the defective condition would release the property owner from liability. Such an obligation to exercise reasonable care may, accordingly, include the obligation of a property owner to retain the services of an arborist, a forester or other professional to determine whether a defective condition exists.

To address the two scenarios described at the beginning of this article:

• If the oak tree, which fell upon your home, was a healthy oak tree, the neighbor will not be liable for the damage caused to your home.
• If you are the “green” owner in the industrial park and there is no evidence that the elm tree was defective and the owner has a current written report from a qualified arborist confirming same, it is possible that the property owner will avoid liability.

Perhaps Mr. T., who cut down all of the oak trees on his estate in Lake Forest in 1987, was just a very prudent property owner who wanted to avoid any possibility of being sued for any damages or injuries caused by any falling trees on his property.

The attorneys at Chuhak & Tecson would be pleased to discuss any questions or concerns which you may have as a property owner whether they pertain to trees or any other matters.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: Arnold E. Karolewski, Principal

This alert originally appeared in the Spring 2017 Real Estate Focus newsletter.