When a tree falls and causes injury, the injured person must show that the tree owner either knew or should have known of the tree’s poor condition.
Storm damage in Bronx.
In order to obtain recovery, the first essential step is to prove that the tree was dangerous. If a healthy tree were to be uprooted in a great storm, then the storm would have caused the damage rather than a dead tree. Therefore, if a healthy tree were to fall, then there would be no valid claim.
After showing that the tree or branch were likely to fall, then the injured party must show “notice,” i.e., the tree owner either knew or should have known of the tree’s weakened condition and likelihood of falling.
There are two types of “notice”:
- Actual Notice. This means that the owner had actual knowledge of the dangerous condition, such as his own internal inspections and reports. A report from a third-party will also show actual notice.
- Constructive Notice. This means that the owner should have known of the dangerous condition if he had made reasonable and regular inspections of his property. Also, this means that the condition existed for such a long period of time that the owner should have known if he had bothered to make reasonable and regular inspections.
Here is an example of actual notice:
The property owner was given a violation by the town for a dead tree which was dangerously overhanging onto the public roadway. The town has directed that the owner remove the tree. Two months later the tree falls on a passing bicyclist.
The town’s violation would show that the property owner knew of the dangerous condition and had “actual notice.”
Here is an example of constructive notice:
A tree falls on a passing pedestrian. It is located on private lot next to the street.
Photographs of the fallen tree show that the were observable evidence of problems which the owner should have observed. An expert arborist shows that the tree had shed its smaller branches leaving only larger branches sticking up. This is an indication of a condition known as “staghorn” which indicates that the tree is dead. Furthermore, there is evidence that the tree has been dead a number of years.
Therefore, plaintiff can prove that the owner should have known of this dangerous condition. Also, the owner should have taken corrective action, such as cutting-down the tree.
If you have been injured due to a fallen tree, please feel free to contact us for a free consultation at either 800-581-1434 or write to firstname.lastname@example.org.
Mark E. Seitelman, 7/27/10, www.seitelman.com.