A Fallen Tree - Who is Liable, You or Your Neighbor?
My Tree Meets My Neighbor's House
The Answer May Surprise You
In the ongoing aftermath of the monster Frankenstorm Sandy, neighbors all across the Northeast are faced with a question. If my tree falls on your house, or if your tree falls on my house, who is liable? The photo to the right shows the base and roots of a tree on my property that fell against my neighbor's house during the storm, causing damage. It's a simple factual situation: a tree fell on someone else's property. Who is responsible? This article hopes to clarify a question that is facing thousands of people across the region hit by the storm. The article will discuss the insurance issues, the legal issues, the question of subrogation, and, perhaps most important, the personal relationship between neighbors. It is a simple question of justice, or is it?
The Insurance Information Institute on Trees
The Insurance Issue
The simple answer is that the person whose property the tree fell on is responsible for the cleanup and the damage. This may surprise you. At first glance it appears that if your tree hits your neighbor's house, it's your liability, so you may think. After all, it's your tree. The same obviously holds true if your neighbor's tree fell on your house. But the rule is pretty simple: the property owner where the tree hit is responsible, and they should make a claim with their insurance company. The video to the right, from the Insurance Information Institute summarizes the issue.
Your homeowner's insurance is for structures. If a tree simply falls and your house is not damaged you will have no claim, unless your policy specifically provides for debris removal from a fallen tree. Structures mean those that are man made and do not include trees or shrubs, no matter how much value they add to your home.
The Legal Issue
We, as citizens, owe to each other a duty of reasonable care under the circumstances. In other words, we do not insure one another; that's what insurance is for. If you are injured in an automobile accident, for example, you are not liable to the other motorist unless you didn't meet that duty of reasonable care. If you didn't, you may be found guilty of negligence, and you (your insurance company as a practical matter) can be liable for damages. There is no legal difference between a car accident and the issue of a fallen tree. You can be liable for damages only if you were negligent. How could you be found negligent? The answer, as always, lies in the evidence. If the fallen tree shows that it was rotted, with no leaves on the upper branches, this could be evidence of negligence: you knew or should have known that there was a problem, and you did nothing to fix it. Other evidence may include pre storm photographs, or a written notice from a neighbor pointing out that a tree was in danger of falling. This happened to me last year. After a thunderstorm I noticed that a neighbor's tree (a different neighbor from the one I mentioned above) was leaning at a 45 degree angle, and would take out my fence and another neighbor's garage if it fell. I wrote a short note, politely explaining the situation, and my neighbor dutifully had the tree removed. Cooperative neighbors trump legal issues every day.
The legal issue discussed above, where a neighbor is actually negligent, can lead to what is called a subrogation claim. The property owner where the tree fell will get paid by his insurance company, and the insurance company may choose to file a subrogation claim. What is subrogation? It's best understood by the phrase "stand in the shoes of another." The insurance company has a right to stand in your shoes and sue the party who actually caused the loss. The suit will read John Jones v. Thomas Smith, not Allstate Insurance Company v. Thomas Smith. It's a legal fiction. Your name goes on the suit because you actually have a loss, which is simply the deductible on your policy. It may be only $250, but the existence of the deductible enables your insurance company to sue in your name. Your job, should this occur, is to cooperate with your insurance company in the subrogation suit, and you better do it. You agreed to it in the policy. Some subrogation claims can be enormous. Say, for example, your neighbor was found negligent in the subrogation lawsuit, and you live in a large and expensive home worth $3,000,000, and the house was totally destroyed when his tree fell on it. Your insurance company had already paid you the three million, and now has the opportunity to get it back from the defendant adjoining property owner.
Make Nice with Your Neighbors
It's just plain stupid for a storm to result in stormy relations with a neighbor. Even though my neighborhood got whacked by the storm, I am blessed to live among nice people. When my neighbor discovered my tree against his house, I was unaware of it because the stump was behind shrubbery. He rang my doorbell and politely pointed out what had happened. He could have said, as is too often the case I fear, "Get your goddam tree off my house." Neither he nor I were aware of the rule that I discuss in this article. When I researched it and discussed it with my insurance broker, I sent my neighbor an email, with politeness equal to his, letting him know that the claim should be put through his insurance company. I told him that I would do anything I could to assist him.
After a storm, nerves are on edge and emotions can boil at a moment's notice. The law is important. We should know it and follow it. But nothing can replace simple kindness. It's cheaper than hiring a lawyer and you'll feel a lot better.
Copyright ©2012 by Russell F. Moran
The author of this article is also the author of the book Justice in America: How it Works - How it Fails, Coddington Press, 2011