This post explores the situation of getting a recovery for a fallen tree or branch against a private property owner. Yesterday’s post focused on getting a recovery for injuries from a fallen tree branch due to snow, specifically the case of a snow laden branch which killed a visitor to Central Park.
Assume the following:
John Jones is in his backyard tending to his garden when an overhanging branch from his neighbor’s property breaks and hits Jones. Jones sustains injuries.
The neighbor’s tree branch had been over-hanging into Jones’s yard for many years. It was sagging and appeared to be unstable. Jones had told his neighbor many times over the course of a year to cut the branch. The neighbor did nothing.
In this instance Jones would have a basis for recovery for his injuries against the neighbor.
In order to recover, the injured client must show the following:
- The defendant owned the tree. Sometimes, the tree will be owned by the City. This important point will be discussed below.
- The tree or branch were unstable. For example, the branch should have been cut or pruned. Or the tree was dead and should have been removed. If there were nothing wrong with the tree, then plaintiff cannot prevail.
- The owner of the tree had notice of the defective condition. For example, if the owner was told that the tree was dangerous, then this would prove “actual notice.” In the alternative, if the condition existed for a long period of time and if the owner should have detected the danger by reasonable inspections and maintainance, then such would be “constructive notice.” Generally, if actual notice can be proved it is more effective than proving constructive notice.
- Last, plaintiff would have to show that the primary cause of the accident was the defective tree rather than “Mother Nature” or some natural occurence. Tree branches fall everyday for any number of reasons which are not foreseeable. In other words, healthy trees and branches and fall due to no fault of the owner.
Furthermore, the fact that the neighbor’s tree branch over-hanged into Jones’s property will aid Jones’s case.
In the City of New York it is important to keep in mind that the City owns and maintains the trees situated along the curb and in the tree pits at the curb.
Here is an example of a tree pit with decorative fencing.
It is interesting to note that although the adjoining property owner or the block association civic association might have installed the fence, nonetheless, it is the City’s tree, and the City has responsibility for its upkeep.
In the case of a City tree which falls, notice must be proven against the City.
Generally, it is easier to prove constructive notice against a private land owner than against the City. A private land owner has a finite piece of land to maintain whereas the City has thousands of square miles.
If you have been injured due to a falling tree or branch, please feel free to call me for a free consultation at 800-581-1434 or write to firstname.lastname@example.org.
Mark E. Seitelman, 3/2/10, www.seitelman.com.