While most business owners are aware they have a legal duty to maintain their premises in a safe, hazard-free condition, some fail to understand or accept the fact that this includes trees on the property.
Trees provide shade, are good for the environment, but unless properly maintained, some are killers, notably eucalyptus.
So, what would a business owner face if one caused damage to property or injury? Would their insurance always cover the claim? I’ll answer those questions in a moment, but first meet “Eric” who lives under the threat of a neighbor’s massive eucalyptus tree crashing onto his office or into a power transformer just feet from the tree, potentially causing a fire.
“Our small accounting office is next to an auto body-repair shop that is on land dotted with eucalyptus trees. Some are dead and one scares the living daylights out of me, as branches are in electrical wires that run from the power pole to both of our offices.
“The tree is massive, it is taller than the pole! I have repeatedly phoned and warned my neighbor that the tree is dangerous and will kill someone if it falls, or start a fire, setting the neighborhood a blaze, but he just ignores me.”
“What should I do at this point?”
Notice – Key to Establishing Liability
San Diego-based attorney Evan W. Walker has had a great deal of experience with these types of cases. He began his analysis with an explanation of why eucalyptus trees are so dangerous.
“Giant eucalyptus drop heavy branches, earning them the nickname ‘Widow Makers.’ They are prone to falling because their shallow, spreading root system does a poor job of steadying the tree. Add to that high winds from a storm, and you’ve got a recipe for trouble with a eucalyptus that has not been properly maintained,” he points out.
I asked Walker what the law requires property owners to do in the situation that Eric is describing.
“Owners and occupiers of land have a legal duty to not expose others to an unreasonable risk of harm, and specifically, a refusal or failure to remove a dangerous condition. Resulting personal injury or property damage can result in an insurance claim, being sued for negligence or for maintaining a nuisance.”
Walker stressed the important of a key factor which must be proven before Eric’s neighbor–or his insurance carrier–would be liable for damages if his tree caused property damage or injury: Notice.
“Two things come to mind, and one is establishing that the tree really is dangerous, the second, providing notice to the neighbor.
“This is the time to cross the t’s and dot the i’s. You do this by having a licensed arborist inspect the tree and write a report. The cost is reasonable and is important in the event the tree does come down and the neighbor denies having any idea of its danger.
“Your reader states that he ‘repeatedly’ notified his neighbor of the danger, but does not say how he communicated that information. Was it simply by placing phone calls, or did he provide written notice?”
Walker then listed the ways that actual written notice should be given–or at least, attempted–to be given to the owner or occupier of that land:
(1) Send a certified letter, which requires a signature.
(2) Politely state in the letter that you are putting your neighbor on notice that one of his trees is dangerous and describe the issues as clearly as you can.
(3) Enclose a copy of the arborist’s report.
(4) Ask that the recommendations made by the arborist are followed immediately.
And just what happens if Eric’s neighbor refuses to sign for the certified letter?
“This will come back to him from the post office, showing the refusal and could be introduced in court if the matter went that far. But if that happened, it would be worth hiring a process server to hand deliver the letter, and Eric would receive a proof of service.”
Could the Tree Owner’s Insurance Refuse to Pay the Claim?
“Both commercial and homeowners insurance is intended to compensate for property damage or injury caused by negligence, but not for intentional acts.
“While it would be extremely rare for a carrier to deny a claim for damages if the tree fell, a refusal to remedy a known risk of harm as Eric faces could lead to his neighbor’s insurance company to deny coverage on a theory of intentional, reckless behavior. It isn’t likely, but could happen,” Walker concludes.
The take-away for both business and homeowners is simple; good neighbors trim or remove dangerous trees. It’s more than treating others as you would want to be treated. It’s the law.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.