California Tree Failure Liability

C

Chris_Houston

Hey everyone, I am hoping to get some insight. I had a client who had a neighbors tree fail (potentially in a moderate snow storm) and fall breaking their fence and blocking my clients' driveway. The owners of the tree are claiming that the failure was an act of god and are not liable. They want me to cite the law to show that they need to pay. Smells like bullshit to me, but I figured I would see if anyone has experience with this. Thanks guys!
 
Chris_Houston said:
Hey everyone, I am hoping to get some insight. I had a client who had a neighbors tree fail (potentially in a moderate snow storm) and fall breaking their fence and blocking my clients' driveway. The owners of the tree are claiming that the failure was an act of god and are not liable. They want me to cite the law to show that they need to pay. Smells like bullshit to me, but I figured I would see if anyone has experience with this. Thanks guys!
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Their property, their liability in my opinion. In my experience, my clients would invoke their insurance to pay for damages and their insurance would then sue the neighbours insurance company for the money

The only time you can force your neighbours to pay outright is if they knowingly had a tree that was hazardous (dead, noticeable large signs, etc) and knowingly did nothing. Then you would sue for negligence

But no matter what you’re paying for the initial cleanup...
 
Chris_Houston said:
Hey everyone, I am hoping to get some insight. I had a client who had a neighbors tree fail (potentially in a moderate snow storm) and fall breaking their fence and blocking my clients' driveway. The owners of the tree are claiming that the failure was an act of god and are not liable. They want me to cite the law to show that they need to pay. Smells like bullshit to me, but I figured I would see if anyone has experience with this. Thanks guys!
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From what you've said, your client is asking you to be an attorney and an expert in California Tort Law. Unless you are, you should decline the assignment, and refer them to one.
 
I could be remembering incorrectly (it was several years ago) but the Iowa Arborist Association hosted Victor Murello, an attorney skilled in tree law, give a presentation. He either alluded to or directly stated that an "Act of God" was becoming harder to defend in court due to the availability of tree knowledge these days. To add, he also said that if the tree grows on your property, you own liability and you can't escape it. That statement was geared more towards municipalities who sometimes try to avoid responsibility by writing code to make the homeowner responsible for tree care (and failures resulting in damage) on trees growing in the right-of-ways. But the premise is the same.

With that said, I think the advice that cerviarborist gave is spot on.

Also, for anyone interested, here is a link to a "newsletter" I get concerning tree law. There are some good reads in there. This particular story references the "Hawaii rule" which would pertain to us in the tree care biz quite a bit. Not that I'm suggesting people comment on the law to their clients, but it's useful info to keep in the back of your mind when looking at stuff like this.

https://treeandneighborlawblog.com/2019/02/07/case-of-the-day-thursday-february-7-2019/
 
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Are you a lawyer?

Seems like they need a lawyer to interpret the law.

I don't go to a excavation company for a root canal? Wrong profession.


Seems around here, everything is an Act of Nature, unless properly notified, or blatantly negligent.

The insurance companies have Plenty of lawyers.

That is why the homeowner has insurance with a company that has lawyers, to deal with this.
 
People get panicky. If she's a real nut, some other squirrel can help her.

Her agent has the answers she needs.

Always have a solid contract and discussion with her/ customers in general about expectations of all parties.

So long as the check clears, and feels worth the effort... Her money is as green as the next person's.
 
I had a client in NY that went through the same ordeal.
A neighbor's maple tree at the back of their property grew with a mean lean over my clients property.
Last march that sucker let go during a storm and landed on the back of his house.
When it went over it took with it several smaller trees that were badly entangled with vines.
Was a tangled mess.

He had to eat the deductible and claim it on his home owners insurance.
Though the trunk was on the neighbors property just inside the property line, the majority of the tree was overhanging his property.
Tree was in his property's "air space" and by NY law he had the right to remove anything on his side of the property himself.
His insurance agent told him later that if he had contacted the neighbor via certified mail, bringing the tree to the neighbor's attention, the neighbor would have been liable for negligence.
 
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dsptech said:
I had a client in NY that went through the same ordeal.
A neighbor's maple tree at the back of their property grew with a mean lean over my clients property.
Last march that sucker let go during a storm and landed on the back of his house.
When it went over it took with it several smaller trees that were badly entangled with vines.
Was a tangled mess.

He had to eat the deductible and claim it on his home owners insurance.
Though the trunk was on the neighbors property just inside the property line, the majority of the tree was overhanging his property.
Tree was in his property's "air space" and by NY law he had the right to remove anything on his side of the property himself.
His insurance agent told him later that if he had contacted the neighbor via certified mail, bringing the tree to the neighbor's attention, the neighbor would have been liable for negligence.
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Same in Michigan
 
Reply 12 has been my understanding,

If you document with a simple letter, your concern over a tree you have a much greater chance of success if damage occurs. If you have an arborists written statement (well worth the money) its a slam dunk.

My next door neighbor had a huge tree in her front yard with a split trunk leaning toward my house, I talked to her about it nicely twice over 6 months to no avail, had a friend who is a certified arb write me a letter stating the danger and sent her a copy by certified mail and a week later the tree was down.....although she choose another arborist LOLs
 
Haven't read every nuance of this thread but I do know that commonly in CA it has been viewed in court that tree issues that just happen are more easily put in the "Act of God" category. If customers want to be proactive and have a 'good chance' of a court viewing it as the owners responsibility they should pay a professional to outline the risks and safety issues of a particular tree or trees and send it to the owner in a written form with proof of delivery.

(Not the last word, or a proven course of success but a principal to look toward.)
 
If there's any nuance, it would be to stay in your lane. If you're an arborist and you're citing case law, you're out of your lane. If you're an arborist and you're speaking strictly to an industry standard evaluation, which points to signs of elevated risk factors.....and you can demonstrate an accumulation of actual knowledge and expertise in that particular niche of the industry, then you're giving a professional opinion as a strong expert. Similarly, an attorney who by themselves opined on the condition of a tree would be well out of their lane.

In other words, I know people who are really good jugglers, and I know people who can ride unicycles all over the place. I know however, very few people who can ride a unicycle while juggling.
 
I can't juggle or ride a unicycle. But I can google and see no reason why info cannot be shared, with disclaimers. IANAL, but...
But anyone who asks for legal research is going to be charged at an attorney's rate. ;)
 
Tom Dunlap said:
And...talk with your own insurance agent to make sure that you have a solid 'errors and omissions' layer of protection for YOU!
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Had a customer tell me that they called their insurance co and told them about a dangerous tree over their home, so the insurance came out to take a look and told them that the policy will be canceled because they know of a pre-existing problem and called it neglect. Lie-deny-postponement= insurance co. But don’t be late with your payments
 
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