If the landowner has knowledge a tree is dead or decaying, the landowner has a duty to exercise reasonable care to prevent unreasonable risk of harm from the dead or decaying tree.
Unfortunately, property owners in rural areas have a low threshold to preclude liability for damages. Generally, landowners in rural areas do not have a duty to inspect and remove their dead or defective trees that hang over highways or roadways. However, if landowners have knowledge [or should have knowledge] that a tree is dead or decaying, they have a duty to exercise reasonable care to prevent unreasonable risk of harm from the dead or decaying tree. To establish liability, the injured party must establish the landowner had actual or constructive notice of an obvious danger that the tree would fall. If the landowner does not have actual or constructive notice of a trees defective condition, the landowner will not be liable.
If the landowner does not have actual or constructive notice of a trees defective condition, the landowner will not be liable.
In regard to an actual notice scenario, it is highly unlikely the injured party will prove the landowner had actual knowledge of the dead or decaying tree. The actual notice scenario could prevail if:
- The landowner admits to actual knowledge of the dead or decaying tree;
- The landowner provided some sort of written documentation of the dead or decaying tree; and
- The landowner received some sort of warning regarding the dead or decaying tree.
Constructive notice is likely to be as equally difficult to prove. The injured party will have to establish that:
- The dead or decaying tree was utterly noticeable;
- The landowner had walked by or saw this dead or decaying tree; and
- Ultimately prove the tree was patently dangerous.
To determine whether a tree is patently dangerous, the injured party may need to retain an expert who will provide an opinion as to whether the tree is dangerous.
It is at this point, the insurance carrier must do a financial evaluation on whether retaining an expert will be financially sound considering the size of the claim. Still, the defendant(s) could retain their own expert who will likely opine the tree was not patently dangerous. Then it comes down to an expert versus expert contest where costs will continue to increase through litigation and ultimately trial. The standard to prove liability of a landowner is relatively difficult. It may be prudent to first send a demand letter and evaluate whether or not to refer to an attorney for litigation. Nevertheless, claims regarding liability of landowners for trees must be fully evaluated at the beginning of the claim. This evaluation not only protects your time and authority, it cuts costs. If you’re not sure what to do, contact an attorney from our subrogation practice.