If a tree falls in the yard, whose problem is it? More to the point, whose homeowner’s insurance has to cover the damage?
The answer, as in most things legal, is, “Depends.”
Generally speaking, the person upon whose land the tree grew is liable for the damages if and only if “he knew or reasonably should have known the tree was diseased, decayed, or otherwise constituted a dangerous condition.” Willis v. Maloof, 184 Ga. App. 349 (1987). The phrase “should have known” does not mean that anyone has a duty to inspect all the trees on their property. “There is no duty to consistently and constantly check all…trees for non-visible rot as the manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.” Cornett v. Agee, 143 Ga. App. 55, 57 (1997).
In plain English, this means that if your tree falls on your neighbor’s property and damages your neighbor’s property or injures your neighbor, you do not have to pay for the damages unless you reasonably should have known there was something wrong with the tree. It may be that when the tree falls down it is obvious that it was rotten on the inside, but if that wasn’t obvious from the outside then you aren’t responsible. It is an “act of God” (yes, that is a legal term which means exactly what it seems like it would mean) and no person is held responsible. You also don’t have to go around testing your trees. However, if there is one that you see every time you pull up your driveway, and it is obviously dead and about to fall down, your own personal obliviousness is not a defense.
So what happens if the tree grows on the property line? This happens more often than you might think. Sometimes a tree grows voluntarily from an acorn buried by a squirrel, and sometimes a tree that was originally planted on one side or another of the property line grows and widens over the years to cross the border on its own. In that case, “each of the landowners upon whose land any part of a trunk of a tree stands has an interest in that tree, a property in it, equal in the first instance to, or perhaps rather identical with, the part which is upon his land; and in the next place embracing the right to demand that the owner of the other portion shall so use his part as not unreasonably to injure or destroy the whole.” Robinson v. Clapp, 65 Conn. 365, 379-370 (1895), as cited in Maloof, supra. This means that you are both responsible for the tree, and you are both under an obligation to do nothing to damage the tree.
That does not mean that one part-owner of a tree would never be liable to the other owner. For example, let’s say Farmer Joe has a vegetable garden right next to the property line that abuts the tree. He is roto-tilling the soil and accidentally severs a major root to the tree. The tree then falls and damages Farmer John’s fence. Joe would be liable to John because the tree fell as a result of what he did to it.
It’s not always an easy question to determine, and it is almost always fact dependent. There is no blanket rule for what “should have known” means. What is obvious to one person may not be obvious to another. If the damage is obvious but covered up by vines or in a remote part of the yard, it may not fall under “should have known.” Dead leaves on part of a tree may or may not be a sign that there is something internally wrong with the tree.
Like nearly every other legal question, you should consult an attorney to see what liability applies to your particular situation.
Nothing in this article should be construed as legal advice. It is being offered for informational purposes only. No lawyer can advise you about your case without hearing the particularized details of your unique situation.
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