Is a property owner subject to liability if a tree on their property falls on a neighboring property and causes property damage or bodily injury?
The client has an old maple tree in the corner of his property. Occasionally branches will shed from the tree and fall. Sometimes those branches fall on the adjacent neighbor’s property, but the neighbor has not suffered any damages. The neighbor argues that the client should trim the tree and will be strictly liable for any damages, personal injury or otherwise, that could be caused by falling branches in the future.
In cases involving fallen trees, liability does not attach in the absence of actual or constructive notice of the dangerous condition of the tree. (Ivancic v. Olmstead, Pozzani v. Vill. of S. Blooming Grove, Figueroa-Corser v. Town of Cortlandt)
Constructive notice requires that the dangerous condition of the tree be readily observable to a reasonable landowner. There is no duty to consistently and constantly check all trees for nonvisible decay. (Ivancic v. Olmstead)
Constructive notice that a tree or limb is dangerous may be based upon signs of decay or other defects that are readily observable by someone on the ground or that a reasonable inspection would have revealed. (Babcock v. County of Albany)
Trees ordinarily are not nuisances, unless decayed or otherwise dangerously unsound. This remains true even if the tree in question drops leaves and branches. Rather, the natural growth and shedding processes of trees constitute a pleasurable reflection of seasonal changes. However, a landowner whose neighbor's tree overhangs their property may trim the overhanging branches of the tree. (Turner v. Coppola)
In Russo v. Jay, a limb fell into the plaintiffs' yard from a tree that was located on the defendant's property. The falling limb damaged the plaintiffs' fence. A similar incident had occurred approximately two years prior and the plaintiffs had informed the defendant that there were several dead trees on the defendant's property, which represented a hazard to the plaintiffs' property. The Appellate Division of the Supreme Court, Second Department ruled in favor of the defendant. The plaintiffs did not provide any evidence that the particular tree from which the limb fell onto their property was unhealthy or that defendant had actual or constructive notice of any defect in that tree. In obiter, the Court stated that even if the plaintiffs had established that the tree limb fell from the defendant's rotted tree and that the branch that fell was the same overhanging limb that the plaintiffs had previously notified the defendant about, the plaintiffs failed to avail themselves of their right to self-help by pruning the tree branches to the extent that they were overhanging their property.
In Tyrrell v. Kelly, a branch from a tree located on the defendant's property fell onto the plaintiffs' driveway and caused damage to their vehicle. Despite the fact that branches had fallen from the tree prior to the incident, the defendants were not held liable. The plaintiffs failed to provide any evidence that the tree was unhealthy or that the defendants had actual or constructive notice of any defects or decay in the tree prior to the incident.
The New York Court of Appeals, in Ivancic v. Olmstead, 66 N.Y.2d 349, 497 N.Y.S.2d 326, 488 N.E.2d 72 (N.Y. 1985) ("Ivancic"), held that no liability attaches to a landowner whose tree falls outside of his premises and injures another unless they had actual or constructive knowledge of the defective condition of the tree (at 327):
Considering first the negligence cause of action, it is established that no liability attaches to a landowner whose tree falls outside of his premises and injures another unless there exists actual or constructive knowledge of the defective condition of the tree. (Harris v. Village of East Hills, 41 N.Y.2d 446, 449, 393 N.Y.S.2d 691, 362 N.E.2d 243; Restatement [Second] of Torts, § 363; Prosser and Keeton, Torts, at 390 [5th ed].)
This test was restated by the Appellate Division of the Supreme Court, Second Department in the 2020 decision of Pozzani v. Vill. of S. Blooming Grove, 189 A.D.3d 1094, 133 N.Y.S.3d 828(Mem) (N.Y. App. Div. 2020) (at 829):
We agree with the Supreme Court's determination to grant the Village's motion for summary judgment dismissing the complaint. In cases involving fallen trees, liability does not attach in the absence of actual or constructive notice of the dangerous condition of the tree (see Ivancic v. Olmstead, 66 N.Y.2d 349, 350–351, 497 N.Y.S.2d 326, 488 N.E.2d 72; Harris v. Village of E. Hills, 41 N.Y.2d 446, 449, 393 N.Y.S.2d 691, 362 N.E.2d 243; Connolly v. Incorporated Vil. of Lloyd Harbor, 139 A.D.3d 656, 658, 32 N.Y.S.3d 185). Here, the Village established, prima facie, that it did not have actual or constructive notice of the alleged dangerous condition of the subject tree (see Ivancic v. Olmstead, 66 N.Y.2d at 350–351, 497 N.Y.S.2d 326, 488 N.E.2d 72; Harris v. Village of E. Hills, 41 N.Y.2d at 449, 393 N.Y.S.2d 691, 362 N.E.2d 243; Figueroa–Corser v. Town of Cortlandt, 107 A.D.3d 755, 757, 967 N.Y.S.2d 744). In opposition, the plaintiff failed to raise a triable issue of fact (see Ivancic v. Olmstead, 66 N.Y.2d at 350–351, 497 N.Y.S.2d 326, 488 N.E.2d 72; Quog v. Town of Brookhaven, 273 A.D.2d 287, 288, 708 N.Y.S.2d 715).
The same test was applied by the Appellate Division of the Supreme Court, Second Department in Figueroa-Corser v. Town of Cortlandt, 107 AD3d 755, 967 N.Y.S.2d 744, 2013 N.Y. Slip Op. 4306 (N.Y. App. Div. 2013), where a tree fell from a landowner's property and killed a man who was driving in his car alongside the property (at 746):
The Supreme Court properly denied Furnace Dock's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. A landowner has a duty to maintain his or her premises in a reasonably safe condition to prevent foreseeable injuries (see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868). “In cases involving fallen trees, a property owner will be held liable only if he or she knew or should have known of the dangerous condition of the tree” (Pulgarin v. Demonteverde, 63 A.D.3d 1026, 1026–1027, 880 N.Y.S.2d 571; see Crawford v. Forest Hills Gardens, 34 A.D.3d 415, 415–416, 824 N.Y.S.2d 150).
Here, Furnace Dock established its prima facie entitlement to judgment as a matter of law by submitting evidence that it did not have actual or constructive notice of the alleged dangerous condition of the tree (see Pulgarin v. Demonteverde, 63 A.D.3d at 1027, 880 N.Y.S.2d 571). In opposition, the plaintiffs raised a triable issue of fact as to whether Furnace Dock had constructive notice of the alleged dangerous condition of the tree ( see Crawford v. Forest Hills Gardens, 34 A.D.3d at 416, 824 N.Y.S.2d 150).
In order for constructive notice to arise, the dangerous condition of the tree must be readily observable to a reasonable landowner. In Ivancic, supra, the New York Court of Appeals explained that there is no duty to consistently and constantly check all trees for nonvisible decay (at 327-328):
At least as to adjoining landowners, the concept of constructive notice with respect to liability for falling trees is that there is no duty to consistently and constantly check all trees for nonvisible decay. Rather, the manifestation of said decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. (See, Berkshire
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Mut. Fire Ins. Co. v. State of New York, 9 A.D.2d 555, 189 N.Y.S.2d 333.) The testimony of plaintiff's expert provides no evidence from which the jury could conclude that defendant should reasonably have realized that a potentially dangerous condition existed. Plaintiff's expert never saw the tree until the morning of the trial when all that remained of the tree was an eight-foot stump. He surmised from this observation and from some photographs of the tree that water invaded the tree through a "limb hole" in the tree, thus causing decay and a crack occurring below. However, the expert did indicate that the limb hole was about eight-feet high and located in the crotch of the tree which would have made it difficult, if not impossible, to see upon reasonable inspection. Although there may have been evidence that would have alerted an expert, upon close observation, that the tree was diseased, there is no evidence that would put a reasonable landowner on notice of any defective condition of the tree. Thus, the fact that defendant landowner testified that she did not inspect the tree for over 10 years is irrelevant. On the evidence presented, even if she were to have inspected the tree, there were no indicia of decay or disease to put her on notice of a defective condition so as to trigger her duty as a landowner to take reasonable steps to prevent the potential harm.
Since the evidence adduced at trial failed to set forth any reasonable basis upon which notice of the tree's defective condition could be imputed to defendant, and recognizing that the cases relied upon by plaintiff are readily distinguishable, * we agree with the view of the Appellate Division that plaintiff failed to establish a prima facie case of negligence.
In Babcock v. County of Albany, 85 A.D.3d 1425, 925 N.Y.S.2d 703, 2011 N.Y. Slip Op. 5163 (N.Y. App. Div. 2011) ("Babcock"), the Appellate Division of the Supreme Court, Third Department stated that constructive notice that a tree or limb is dangerous may be based upon signs of decay or other defects that are readily observable by someone on the ground, or that a reasonable inspection would have revealed. In Babcock, the defendant met his initial burden of demonstrating that he did not have constructive notice by testifying that he had not received complaints about the tree and had never observed any abnormalities that would have caused him to suspect that it was dangerous (at 704):
We affirm. When a tree falls and injures someone who is not present on the property where the tree is located, the landowner can only be held liable if he or she had actual or constructive knowledge of the defective condition of the tree (see Ivancic v. Olmstead, 66 N.Y.2d 349, 350–351, 497 N.Y.S.2d 326, 488 N.E.2d 72 [1985], cert. denied 476 U.S. 1117, 106 S.Ct. 1975, 90 L.Ed.2d 658 [1986]; Newman v. City of Glens Falls, 256 A.D.2d 1012, 1013, 682 N.Y.S.2d 314 [1998]). Constructive notice that a tree or limb is dangerous may be based upon signs of decay or other defects that are readily observable by someone on the ground or that a reasonable inspection would have revealed (see Ivancic v. Olmstead, 66 N.Y.2d at 351, 497 N.Y.S.2d 326, 488 N.E.2d 72; Ferrigno v. County of Suffolk, 60 A.D.3d 726, 727–728, 875 N.Y.S.2d 202 [2009]; Lillis v. Wessolock, 50 A.D.3d 969, 969, 856 N.Y.S.2d 487 [2008]). Through submission of his deposition testimony, defendant met his initial burden of demonstrating that he never received complaints about the tree and never observed any abnormalities that would have caused him to suspect that it was dangerous. The burden then shifted to plaintiff to establish a triable question of fact.
In Russo v. Jay, 66 Misc.3d 141(A), 121 N.Y.S.3d 507(Table) (N.Y. App. Div. 2020), the Appellate Division of the Supreme Court, Second Department heard an appeal in a case where a limb fell into the plaintiffs' yard from a tree that was located on the defendant's property. The falling limb damaged the plaintiffs' fence. Approximately two years prior to this incident, debris from a tree on the defendant's property had fallen into the plaintiffs' yard and caused property damage. At that time, the plaintiffs sent a certified letter to the defendant informing the defendant that there were several dead trees on the defendant's property which represented a hazard to the plaintiffs' property. The Court upheld the trial court decision in favor of the defendant. The Court held that, despite the fact that the plaintiffs had advised the defendant about debris falling from trees on the defendant's property, the plaintiffs did not provide any evidence that the particular tree from which the limb fell onto their property was unhealthy or that defendant had actual or constructive notice of any defect in that tree. Further, in obiter, the Court stated that even if the plaintiffs had established that the tree limb fell from the defendant's tree and that the branch that fell was the same overhanging limb that the plaintiffs had previously notified the defendant about two years earlier, the plaintiffs failed to avail themselves of their right to self-help by pruning the tree branches to the extent that they were overhanging their property:
To establish defendant's liability, plaintiffs bore the burden of demonstrating, among other things, that a defective condition existed and that defendant had affirmatively created the condition, or had actual or constructive notice of its existence (see Skalafuris v. Arpadi , 43 Misc 3d 128[A], 2014 NY Slip Op 50484[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). "Constructive notice that a tree or limb is dangerous may be based upon signs of decay or other defects that are readily observable by someone on the ground or that a reasonable inspection would have revealed" (Babcock v. County of Albany, 85 AD3d 1425, 1426 [2011]; see Ivancic v. Olmstead, 66 NY2d 349, 351 [1985] [the manifestation of a tree's "decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm"]; Michaels v. Park Shore Realty Corp., 55 AD3d 802 [2008]; Lillis v. Wessolock, 50 AD3d 969 [2008]). There is no duty to consistently and constantly check for non-visible decay. Although plaintiffs testified that debris had fallen from defendant's overhanging tree limbs in the past and that they had sought to advise defendant of that on one occasion two years earlier, they failed to provide any evidence that the particular tree from which the limb fell onto their property in 2018 was unhealthy or that defendant had actual or constructive notice of any defect in that tree. Thus, we conclude that plaintiffs failed to make out a prima facie case (see Skalafuris v. Arpadi, 43 Misc 3d 128[A], 2014 NY Slip Op 50484[U]; Rosenbaum v. Mount Hebron Cemetery, 42 Misc 3d 147[A], 2014 NY Slip Op 50366[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; see also Goldman v. Severe, 31 Misc 3d 151[A], 2011 NY Slip Op 51124[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]).
In any event, even if the testimony had established that the tree limb fell from defendant's rotted tree and that it was the overhanging limb that plaintiffs had previously complained to defendant about in 2016, plaintiffs failed to avail themselves of their right to self-help by pruning the tree branches to the extent that they were overhanging plaintiffs' property (see Kuney v. Christian, 42 Misc 3d 136[A], 2014 NY Slip Op 50120[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; Hileman-Rizzo v. Krysty, 10 Misc 3d 135[A], 2005 NY Slip Op 52118[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2005]; see also 1 NY Jur 2d, Adjoining Landowners § 65). In view of the foregoing, we find that the judgment in favor of plaintiffs failed to render substantial justice between the parties according to the rules and principles of substantive law (see UJCA 1804, 1807).
In Tyrrell v. Kelly, 2015 NY Slip Op 51898(U) (N.Y. App. Div. 2015), the Appellate Division of the Supreme Court, Second Department heard an appeal in a case where a branch from a tree located on the defendants' property fell on the plaintiffs' driveway and caused damage to their vehicle. The Court reversed the judgment of the trial court and ruled that the defendants were not liable. The Court noted that despite the fact that branches had fallen from the tree prior to the incident, the plaintiffs failed to provide any evidence that the tree was unhealthy or that the defendants had actual or constructive notice of any defects or decay in the tree prior to the incident:
It is undisputed that defendants owned the tree in question. In order to impose liability upon defendants, plaintiffs bore the burden of showing that defendants had either actual knowledge of the defective nature of the tree or constructive notice of the dangerous condition (see Ivancic v Olmstead, 66 NY2d 349 [1985]; Sleezer v Zap, 90 AD3d 1121 [2011]; Michaels v Park Shore Realty Corp., 55 AD3d 802 [2008]). The manifestation of any decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm (see Ivancic v Olmstead, 66 NY2d 349; Lillis v Wessolock, 50 AD3d 969 [2008]). Although plaintiffs testified that branches had fallen from the tree prior to the incident in question, they failed to provide any evidence that the tree was unhealthy or that defendants had actual or constructive notice of any defects or decay in the tree prior to the incident (see Goldman v Severe, 31 Misc 3d 151[A], 2011 NY Slip Op 51124[U] [App term, 9th & 10th Jud Dists 2011]). Consequently, the judgment in favor of plaintiffs failed to render substantial justice between the parties according to the rules and principles of substantive law (UJCA 1804, 1807). Accordingly, the judgment is reversed and the action is dismissed.
Trees ordinarily are not nuisances, unless decayed or otherwise dangerously unsound. This remains true even if the tree in question drops leaves and branches. As explained by the Supreme Court of Nassau County in Turner v. Coppola, 102 Misc.2d 1043, 424 N.Y.S.2d 864 (N.Y. Sup. Ct. 1980), the natural growth and shedding processes of trees constitute a pleasurable reflection of seasonal changes. A landowner whose neighbor's tree overhangs their property may trim the overhanging branches of the tree (865-867):
The specific question raised is whether the overhanging branches and/or accumulated fallen leaves, branches, and buds, under
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the circumstances stated, constitute a nuisance or other actionable legal theory, entitling plaintiff to relief.
When plaintiff states in her affidavit in answer to defendants' motion for dismissal of the complaint that this action does not fall within the category of nuisance or negligence or self-help "by clipping off the offensive encroaching branches", this court agrees in part.
The essence of a private nuisance is interference with the use and enjoyment of land amounting to an injury in relation to a right of ownership in that land. (Kavanagh v. Barber, 131 N.Y. 211, 30 N.E. 235; Mandell v. Pivnick, 20 Conn.Sup. 99, 125 A.2d 175.) Since the trees in this case are not poisonous or noxious in their nature, they are not a nuisance per se, in such a sense as to sustain an action for relief. (Countryman v. Lighthill, 24 Hun 405 (1881).)
Recovery for damages from overhanging branches depends upon the presence of actual injury to plaintiff or plaintiff's property. Upon the facts stated and the allegations made in the complaint, there is insufficient basis for an action as a private nuisance because real, sensible damage has not been shown to result from the overhanging tree branches or leaves. Countryman v. Lighthill, supra. There is some difference of opinion as to the extent of damages required to constitute sensible or substantial damages, only that without this showing, an action in nuisance does not arise. The cases are in agreement that trees ordinarily are not nuisances, unless decayed or otherwise dangerously unsound. Gibson v. Denton, 4 App.Div. 198, 38 N.Y.S. 554. One standard for measuring the degree of damage in this area is definite offensiveness, inconvenience or annoyance to the normal person in the community where the customs of the community are to be taken into account. Wade v. Miller, 188 Mass. 6, 73 N.E. 849; Restatement of Torts, § 822, Comment g.
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Summary abatement by self-help under these circumstances is a sufficient remedy. Countryman v. Lighthill, supra. Just as it has been established that a property owner may resort to self-help in the first instance to remove tree roots adversely affecting his land, Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490; Colombe v. City of Niagara Falls, 162 Misc. 594, 295 N.Y.S. 84; Ferrara
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v. Metz, 49 Misc.2d 531, 267 N.Y.S.2d 823, so it has been held with the removal of overhanging tree branches. We do not see this burden as an unreasonable one upon the plaintiff. Such a limitation upon the rights of a landowner is proper with respect to innoxious tree branches and leaves, as they are readily visible, unlike roots, and may be cut and collected without great difficulty. Norwood v. City of N. Y., 95 Misc.2d 55, 406 N.Y.S.2d 256. Indeed, such natural growth and shedding processes of trees are inherent in such an area, and to most people constitute a pleasurable reflection of seasonal changes.
Plaintiff's right to ordinary trimming and clipping of the overhanging branches does not extend to destruction or injury to the main support systems of the tree. Spadaro v. Putter, Sup., 108 N.Y.S.2d 343; Adams v. Hahne, 59 Misc.2d 827, 300 N.Y.S.2d 420, where controlled clipping of an encroaching hedge was allowed but legal action was not. In any event, plaintiff may not go beyond the property line to cut or destroy part or all of a tree on the adjoining land unless the tree becomes a private nuisance as to an abutting owner, due to its rotted and diseased condition. Childers v. New York Power & Light Corp., 275 App.Div. 133, 89 N.Y.S.2d 11.
Pozzani v. Vill. of S. Blooming Grove, 189 A.D.3d 1094, 133 N.Y.S.3d 828(Mem) (N.Y. App. Div. 2020)
Figueroa-Corser v. Town of Cortlandt, 107 AD3d 755, 967 N.Y.S.2d 744, 2013 N.Y. Slip Op. 4306 (N.Y. App. Div. 2013)
Babcock v. County of Albany, 85 A.D.3d 1425, 925 N.Y.S.2d 703, 2011 N.Y. Slip Op. 5163 (N.Y. App. Div. 2011)
Russo v. Jay, 66 Misc.3d 141(A), 121 N.Y.S.3d 507(Table) (N.Y. App. Div. 2020)
Tyrrell v. Kelly, 2015 NY Slip Op 51898(U) (N.Y. App. Div. 2015)
Turner v. Coppola, 102 Misc.2d 1043, 424 N.Y.S.2d 864 (N.Y. Sup. Ct. 1980)
