Thursday, December 9, 2010

Overhanging Tree Limbs - If You Own the Tree, You Own the Limbs

Lawyers are often asked about liability issues regarding trees along neighboring properties.  Depending on which neighbor is asking, the question goes like this:

A.   I own a tree that has branches extending over my neighbor's property.  My neighbor wants me to cut it down or trim it back.  Do I have to do so?  If the branches break and fall, am I responsible for damage caused to my neighbor's property (or injuries)?

or

B.  My neighbor's tree has branches that extend over my property.  I have asked them to cut it down or trim it back, but they refuse to do so. What recourse do I have?

The general rule is if you own the tree, you own the limbs, and if the tree limbs extend off your property onto your neighbor's property, your neighbor has a right to remove those limbs up to the property line.  Secondly, if a tree is on your property and a limb falls from that tree and damages your neighbor's property or injures someone, yes, you may be liable.

In the recent case of Ortiz v. Jesus People, U.S.A, Case No. 1-09-3255 (Ill. App. 1st Dist. November 12, 2010), the plaintiff was injured when a large tree branch, that extended over a public sidewalk from a tree on the defendant's property, broke and fell on plaintiff.  The branch was apparently 19 feet long and about 14 inches in diameter.  The Appellate Court in this case provided a good summary of the law on the subject. A landowner in an urban area has a duty of reasonable care, which can include a duty to inspect or prune the trees to make sure the trees are safe.  To determine whether there was such a duty in a specific case, courts weigh the reasonable foreseeability of the injury, the reasonable likelihood of the injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant.

In the Ortiz case, the Court found that the fact that defendants admitted having owned the property for years and having known that this tree had a large limb overhanging a public walkway created a duty for the defendant to act (for example, cutting the branch back so it did not hang over the sidewalk), and that the defendant's failure to act breached that duty.  The Court further held that the City of Chicago did not owe a duty to cut the limbs back so they did not overhang the sidewalk, because the tree itself was located on the defendant's property.  In Ortiz, the trial jury returned a verdict finding the defendant liable, and the Appellate Court affirmed that judgment.

If you have trees on your property, you are much better off taking care of overhanging limbs BEFORE an accident occurs, even if it means having to spend some money to have a professional take care of it.

No comments:

Post a Comment