Every few years, I am asked by a colleague, relative or friend whether s/he is responsible for damage or injury that a falling tree or limb caused an adjoining property or a neighbor. A recently reported case summarized the relevant, applicable and dispositive law. Skalafuris v. Arpadi, 43 Misc.3d 128(A), Appellate Term, Second Department, March 17, 2014.
The Court summarized the facts and prior proceedings:
Plaintiff and defendant are adjoining property owners. The trunk of a large tree at the parties’ property border stood, either entirely or primarily, on defendant’s side of the property line. In March 2010, a large branch fell from the tree onto plaintiff’s property. Plaintiff seeks in this action to recover the damages he allegedly sustained as the result of that incident. Plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion and cross-moved for summary judgment dismissing the complaint. The City Court denied both the motion and the cross motion, finding that triable issues of fact exist as to whether the tree was decayed, and, if so, whether defendant had actual or constructive notice of the decay prior to the fall of the branch. This appeal by plaintiff ensued. Id. at 1.
The applicable law:
For a defendant landowner to be liable in tort to a plaintiff as a result of an allegedly defective condition upon the defendant’s real property, the plaintiff must establish that the defective condition existed on the defendant’s property, and that the defendant landowner either created the condition or had actual or constructive notice of its existence (e.g. Kruger v Donzelli Realty Corp.,111 AD3d 897, 898 ; Fontana v R.H.C. Dev., LLC, 69 AD3d 561, 562 ). Id.
“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” (Ivancic v Olmstead, 66 NY2d 349, 351 ; see also Michaels v Park Shore Realty Corp., 55 AD3d 802 ; Lillis v Wessolock, 50 AD3d 969 ). Id.
And applied the facts to the law:
In support of his motion for summary judgment, plaintiff did not claim that defendant had created the condition or that he had actual notice of its existence prior to the fall of the tree limb; rather, plaintiff annexed a photograph which was apparently intended to depict the fallen limb, and the unsigned, unsworn statement of an arborist to the effect that, based on the appearance of the limb following the fall, it “seems like the tree has been infected for about 20 years.” Plaintiff also made unsubstantiated assertions that the tree was a red maple, that red maples are prone to disease, and that the “v-shaped” crotch in the tree trunk made defendant’s tree especially vulnerable to disease. Id.
* * *
Since, in support of his motion, plaintiff failed to provide evidence from any witness who had observed indicia of disease in the tree prior to the fall of the limb, we conclude that plaintiff failed to make out a prima facie case for summary judgment, and, consequently, that plaintiff’s motion was properly denied, regardless of the sufficiency of the opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Ortega v Liberty Holdings, LLC, 111 AD3d 904, 905 ). Id. at 1-2.
Ivancic was the seminal “tree” case by the Court of Appeals, upon which the Appellate Term relied in Skalafuris. (Ivancic v. Olmstead, 66 N.Y.2d 349 ).
The Court of Appeals summarized the facts:
Plaintiff was working on his truck in the driveway of his parents’ home located in the Village of Fultonville, New York. Since 1970, defendant has owned and lived on the property adjoining to the west. A large maple tree stood on defendant’s land near the border with plaintiff’s parents’ property. Branches from the tree had extended over the adjoining property. During a heavy windstorm on September 26, 1980, an overhanging limb from the tree fell and struck plaintiff, causing him serious injuries. As a result, plaintiff commenced this action, interposing causes of action in negligence and common-law trespass. Id. at 350.
The issue on appeal:
“At issue on this appeal is whether plaintiff, who seeks to recover for injuries sustained when an overhanging limb from a neighbor’s maple tree fell and struck him, established a prima facie case of negligence[.]” Id.
The state of the law:
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; Restatement [Second] of Torts § 363; Prosser and Keeton, Torts, at 390 [5th ed].) Id. at 351.
And elucidated that:
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 Mut. Fire Ins. Co. v State of New York, 9 A.D.2d 555.) Id.
Between Ivancic and Skalafuris, our courts have addressed numerous falling-tree-related issues. Four recent examples follow:
In Babcock v. County of Albany, 85 A.D.3d 1425, 925 N.Y.S.2d 703 (3d Dept. 2011):
In July 2005, while plaintiff was riding a motorcycle on Route 144 in the Town of Coeymans, Albany County, a massive tree limb fell onto the road and injured plaintiff. The tree from which the limb fell was located on property owned by defendant Robert J. McDonald…Plaintiff commenced this action alleging, among other things, that defendant was negligent in the maintenance of the tree on his property. After Supreme Court granted motions for summary judgment dismissing the complaint as against the other defendants, defendant moved for summary judgment dismissing the complaint as against him. The court denied defendant’s motion, prompting this appeal. Id. at 1426.
The Court, as follows, affirmed:
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 NY2d 349, 350-351 , cert denied 476 US 1117 ; Newman v City of Glens Falls, 256 AD2d 1012, 1013 ). 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 NY2d at 351; Ferrigno v County of Suffolk, 60 AD3d 726, 727-728 ; Lillis v Wessolock, 50 AD3d 969 ). 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. Id.
Plaintiff raised factual questions, mainly through the submission of an expert affidavit and photographs of the tree and limb. An arborist provided his expert opinion, based upon a review of photographs taken around the time of the accident and an inspection of the tree in April 2009, that the tree and limb had defects that would have been readily observable in July 2005 (see Crawford v Forest Hills Gardens, 34 AD3d 415, 416 ). The expert explained the basis for his opinion, including by marking photographs to show different cracking, coloring and weathering patterns on different portions of the tree. Id.
Defendant testified that he did not trim branches from the tree—and contrarily that he only trimmed a few branches under limited circumstances—and he never hired anyone else to maintain his trees, but that the utility company trimmed his branches once. The expert contradicted this testimony by noting evidence of branches having been trimmed on the side of the tree near the house, whereas the utility company would only trim near the power lines and the state would only trim on the side near the roadway that it was responsible for maintaining. The expert opined that if defendant or his agent had trimmed branches on the side near the house, the trimmer would or should have seen the decay on the limb at issue. This created a factual question as to whether defendant had at least constructive notice of the condition of the limb due to trimming, in addition to the defects that the expert indicated would have been observable from the ground (see Rinaldi v State of New York, 49 AD2d 361, 363-364 ). Although the expert inspected the tree nearly four years after the accident, his affidavit was admissible (see Oboler v City of New York, 8 NY3d 888, 890 ); he explained how he reached his conclusion that certain aspects of decay or defects would have been observable prior to the date of the accident (compare Richardson v Rotterdam Sq. Mall, 289 AD2d 679, 680-681 ). Thus, plaintiff raised questions of fact requiring denial of defendant’s motion for summary judgment (see Ehlers v County of Otsego, 12 AD3d 814, 814-815 ; Jurgens v Whiteface Resort on Lake Placid, 293 AD2d 924, 926 ). Id.
In Sleezer v. Zap, 90 A.D.3d 1121, 933 N.Y.S.2d 764 (3d Dept. 2011):
As plaintiff was driving on a public highway, two large limbs from a tree located on defendant’s property fell and struck plaintiff’s vehicle, causing him injuries. He commenced this negligence action against defendant for failing to maintain the tree or remedy its allegedly defective condition. Defendant moved for summary judgment dismissing the complaint. Supreme Court denied the motion, prompting defendant’s appeal.
The Court summarized the applicable law:
Defendant owed a duty to travelers on the adjacent highway to maintain her property in a reasonably safe condition (see Newman v City of Glens Falls, 256 AD2d 1012, 1012-1013 ). This duty may only be considered breached if defendant had actual or constructive notice of a dangerous or defective condition pertaining to the tree and failed to correct that condition (see Ivancic v Olmstead, 66 NY2d 349, 350-351 , cert denied 476 US 1117 ; Harris v Village of E. Hills, 41 NY2d 446, 449 ). The record does not contain any proof of actual notice. “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  [citation omitted]; see Ivancic v Olmstead, 66 NY2d at 351; Lillis v Wessolock, 50 AD3d 969 ). Id.
And, after applying the law to the facts reversed:
Through submission of her deposition testimony, defendant met her initial burden of establishing that she lacked actual or constructive notice (see Babcock v County of Albany, 85 AD3d at 1426). She testified that she saw the tree every day and was aware that a portion of its branches extended over the road, but she was not concerned because the “tree was healthy.” She had never noticed any effect on the branches from snowfall. Previously, her former husband had pruned the tree whenever “there were branches that appeared to be weak or that appeared not to be producing needles or that looked like they needed to come down.” Additionally, the man in charge of the county crew that removed the limb after it fell told defendant that the larger limb was not rotted, and he could only assume that it may have been weakened in a wind storm the prior week. Id. at 1122.
The burden then shifted to plaintiff, who failed to raise an issue of fact regarding notice. Plaintiff testified that he had no knowledge of the tree’s allegedly defective condition prior to the accident. He “conceded that the tree was not rotted.” Plaintiff’s expert arborist opined that the problem was structural, mainly that the angle and length of the larger limb that fell created a weight factor and a hazardous condition that, due to environmental conditions in this area, would result in an accident at some time. The arborist also stated that “the health of the tree would be considered fair to good” based upon industry standards. He did not identify any rot or deterioration. Notably, the arborist did not indicate that an average person—as opposed to an expert—would have been able to conclude, upon reasonable inspection of this healthy tree, that a limb was structurally unsound and posed a danger based on the length, angle and weight of that limb (see Ivancic v Olmstead, 66 NY2d at 351). As the record contains no proof that defendant had actual or constructive notice that her tree posed a danger to anyone, she is entitled to summary judgment dismissing the complaint (see Pulgarin v Demonteverde, 63 AD3d 1026, 1027 ). Id.
In Keating v. Town of Burke, 105 A.D.3d 1127, 962 N.Y.S.2d 804 (3d Dept. 2013):
In July 2005, while attending an event organized by the Burke Volunteer Fire Department at a field owned by defendant, Town of Burke, plaintiff was severely injured when a large tree branch fell on her head and shoulder. Plaintiff subsequently commenced this action against the Town and the Burke Volunteer Fire Department and both moved thereafter for summary judgment dismissing the complaint. Supreme Court granted each of the motions. However, on appeal, this Court modified Supreme Court’s order by reversing so much thereof as granted the Town’s motion (86 AD3d 660 ). In doing so, we specifically noted the Town’s failure to submit proof regarding what inspections it had performed and whether it had maintained the field in a reasonably safe condition (id. at 661-662). Upon return to Supreme Court, the Town filed a second motion for summary judgment dismissing the complaint, this time adding an affidavit from its Highway Superintendent which explained the manner in which the Town had inspected the subject field. Supreme Court, among other things, denied the Town’s motion, prompting this appeal. Id.
And the Court affirmed, finding that:
[T]he Town had not demonstrated its entitlement to judgment dismissing the complaint as a matter of law. Assuming that the Town met its prima facie burden showing that it reasonably inspected the field and did not have constructive notice of any dangerous condition, photographs of the tree and the affidavits proffered by plaintiff—including her own, as well as those of witnesses to her injury and an expert arborist—demonstrate that there was clear indicia of decay to the tree limb which must have been present and apparent for a substantial period of time prior to plaintiff’s injury (see Ivancic v Olmstead, 66 NY2d 349, 350-351 , cert denied 476 US 1117 ; Babcock v County of Albany, 85 AD3d 1425, 1427 ; Pulgarin v Demonteverde, 63 AD3d 1026, 1026-1027 ; Ferrigno v County of Suffolk, 60 AD3d 726, 728 ; compare Sleezer v Zap, 90 AD3d 1121, 1122 ). As a result, viewing the evidence in a light most favorable to plaintiff (see U.W. Marx, Inc. v Koko Contr., Inc., 97 AD3d 893, 894 ), Supreme Court properly determined that there are issues of fact requiring denial of the Town’s motion for summary judgment. Id. at 1128-1129.
And finally, in McKeever v. The City of Rye, 35 Misc.3d 1208(A), 950 N.Y.S.2d 724 (City Court, Rye 2012), “a civil action for negligence in connection with damages caused by a fallen tree” owned by the City of Rye that fell on February 11, 2011:
The plaintiff testified that he is the owner of 147 Grace Church Street in Rye. The tree in question fell and damaged the roof of his house creating holes, ripping down gutters and tearing off shingles. Plaintiff testified he needed to have a tarp deployed to prevent further damage from the weather and expended funds to repair the damage caused by the fallen tree. Plaintiff also claimed lost rent for the house claiming he had to credit the tenants rents for the time from the injury until the completion of repairs. On cross-examination, plaintiff conceded that he had not provided any notice of any defect or impaired condition of the tree before the tree fell. Id.
Plaintiff also called the defendant’s tree foreman who testified that he was the custodian of the tree inspection and maintenance records and that he had no record of any tree service calls in 2010 and 2011. On cross-examination, the tree foreman said the fallen tree was apparently healthy, showing no signs of decay or rot even after it fell. He also said there had been an ice and rain storm just before the tree fell and the tree had been uprooted by the storm. During his driving through the City in the course of his duties, he did not notice any damage to, disease in, or threat from the tree before it fell. Id.
After adverting to Ivancic and its progeny the Court noted that:
There is no claim that the defendant caused the tree in question here to fall. The City of Rye certainly did not create or design the tree nor did it knock it down. There is no evidence proffered by the plaintiff that the defendant had actual notice of any decay or disease in the particular tree that fell nor of any other defect in the tree. Plaintiff offers no proof of any prior written notice to the defendant of a defective condition of the particular tree in question. Plaintiff merely offers that there was an absence of records of any tree work by the City for the years 2010 and 2011, despite several tree calls on the Grace Church Street during the previous several years. A landowner from whose property a tree fell and injured plaintiff was under no duty to consistently check all trees for non-visible decay and would be under an obligation to take reasonable steps to prevent harm if manifestation of decay was readily observable. Ivancic , supra & Goldman v Severe, supra. There was no indication of any visible defect or decay offered by plaintiff here. On the other hand, where the tree appears to be safe on ordinary observation, the municipality may not be liable. Quog v. Town of Brookhaven, 273 AD2d 287, 708 NYS2d 715, 716 [2nd Dep’t 2000] (To put the municipality on constructive notice of a defective condition in a tree so as to give rise to the duty to discover and correct the condition, evidence must be presented that the dangerous condition of a tree was present for a sufficient length of time prior to the accident to permit the municipal employees to discover and remedy it); Asnip v State, 300 AD2d 328, 751 NYS2d 316 [2nd Dept 2002] and Leach v. Town of Yorktown, 251 AD2d 630, 676 NYS2d 209, 210 (2d Dep’t 1998) (tree exhibited no visible, outward signs of decay and, thus, defendant Town did not have constructive notice of condition of tree prior to accident). Id. at 2.
Unfortunately for plaintiff, the law does not provide a remedy for every occurrence. As New York State’s Court of Appeals held in Sheldon v. Sherman, 42 NY 484 :
“There is a large class of cases, in which injury is suffered by a party, where the law gives no redress. If a tree growing upon the land of one is blown down upon the premises of another, and in its fall injures his shrubbery, or his house, or his person, he has no redress against him upon whose land the tree grew.” Id. at 486. Id.
And admonished that:
Our society has organized itself based on the premise that a person is responsible for his or her own actions. Thus, if someone has a duty to do or refrain from doing something, but fails to do so, he or she may be liable to one injured by a breach of that duty. Absent a duty, there is no liability. That, however does not leave the injured party without a remedy. We have also organized our society to cover that risk by the creation of the opportunity to share the risk and spread the risk among others. We call that insurance. A party is generally free to purchase a contract of insurance that will reimburse him or indemnify him from that risk. The option to obtain insurance is a choice, not a requirement. If you choose to bear the risk of loss, you may refrain from purchasing insurance. If you choose to bear some but not all of the risk, you may do so by purchasing an insurance contract with policy limitations, such as a deductible amount or a cap on recovery. The cost of the insurance will vary with the amount of coverage and the extent of policy limitations. You can choose to pay the premium or bear the risk. Here, the plaintiff had the opportunity to protect himself from the risk of falling trees had he chosen to do so. That he did not do so or chose to forego a claim under a policy forms no basis to impose liability on another. He must live with the consequences of his choices. Id.
So…”if a tree [on your property] falls” and damages the person or property of another, you are potentially liable to your neighbor only if you knew (i.e. actual notice) or had reason to know (i.e. constructive notice) that a potentially-dangerous condition existed.