If A Tree Falls…(Can I Sue?) Yes, Of Course…(But You May Not Win!)

This was originally published on the SGR Blog.

Rosemarie Russo and Joseph Ostrowsky sued their abutting neighbor, Kenneth Jay, in Small Claims court. The sought to recover for damage that they sustained after a branch from a tree, which was allegedly on Jay’s property, fell into their yard, damaging their fence. Ray counterclaimed to recover damages resulting from the Ostrowskys’ workers trespassing on his property.

At a nonjury trial, the Ostrowskys testified that, in 2016, debris from a tree on Jay’s property fell into their yard and damaged their pool fence. They had sent Jay a certified letter in 2016, informing him that he had several dead trees on his property, which represented a hazard to their land. Jay did not accept the letter. The Ostrowskys offered photographs taken in 2016 to support their position that the trees in Jay’s yard were in a deteriorated condition. Jay asserted that, in 2016, the debris from the tree fell as a result of an “act of God.” And that the Ostrowskys had not shown that a dangerous condition existed or that he had notice of such a condition.

The trial court awarded the Ostrowskys damages of $568.67. Jay appealed.

In a small claims action, the Court’s review was limited to a determination of whether substantial justice had been done between the parties according to the rules and principles of substantive law.

To establish Jay’s liability, the Ostrowskys had the burden of demonstrating that a defective condition existed, and that Jay had affirmatively created the condition or had actual or constructive notice of its existence.

Constructive notice that a tree or limb is dangerous may be based upon signs of decay or other defects that were easily observable by someone on the ground or that a reasonable inspection would have revealed. The manifestation of a tree’s decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm. However, there is no duty to consistently and constantly check for non-visible decay.

The Ostrowskys testified that debris had fallen from Jay’s overhanging tree limbs in the past And that they had sought to advise him of that on one occasion two years earlier. But, they failed to provide any evidence that the particular tree from which the limb fell onto their property in 2018 was unhealthy or that Jay had actual or constructive notice of any defect in that tree. Thus, the appeals court concluded that the Ostrowskys failed to make out a prima facie case.

In any event, even if the testimony had established that the tree limb fell from Jay’s rotted tree and that it was the overhanging limb that the Ostrowskys had previously complained to Jay about in 2016, they 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 view of the foregoing, the appeals court found the judgment in favor of Ostrowskys failed to render substantial justice between the parties according to the rules and principles of substantive law.


William H. Wurtz filed a Small Claims action against an abutting property owner, Long Island Railroad. He sought to recover the cost of removing branches from two of LIRR’s trees, which overhung onto Wurtz’ property. Wurtz was awarded damages LIRR appealed.

The appeal’s court found that imposition of liability upon LIRR did not achieve substantial justice consistent with substantive law principles. There was no showing that the branches constituted a nuisance, trespass or caused any actual injury to Wurtz’ property.

A land owner does not have a cause of action from the mere fact that the branches of an innocuous tree belonging to an adjoining owner overhangs the premises. An owner could be protected by self help consisting of a reasonable cutting of branches to the extent that they invade the property.

In any event, even if liability was properly imposed, Wurtz failed to establish the cost of removing the tree branches by a paid invoice, or two itemized estimates.

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