Wednesday, April 15, 2015

In Tennessee, What Happens if a Limb from Your Neighbor's Tree Falls Onto Your Property?

It's spring time in Tennessee and another storm passes through town. As the sun peeks through your windows, you walk outside. Taking in the sunshine, you notice that your brand new car has a large tree limb stuck right through the middle of the windshield. Panicked, you look around to find out where the tree limb came from. You discover that your neighbor’s tree is missing several branches and limbs and that, sure enough, one of those limbs is wedged in your windshield.
You knock on your neighbor’s door so the two of you can discuss the situation like adults, but your neighbor tells you to go fly a kite. What should you do next?
There are several questions woven into this set of facts. Does it matter if the tree is dead or alive? Does it matter if your neighbor knew whether the tree was dead or alive? Does it matter if the tree was entirely on your neighbor’s property or whether the tree partially encroached on your property?
These questions have been addressed in some way or another by Tennessee Appellate Courts. In the recent case of Russell v. Claridy, 2013 WL 655235, a tree from a neighbor’s property fell and caused damage to Ms. Cindy Russell’s 2005 Dodge Caravan.
The Russell Court addressed the question of whether a landowner is liable for damage caused by a healthy tree on his property that is felled by an act of God. The Court found that the defendant’s tree was healthy prior to the thunderstorm that caused it to fall. Because the Court found no evidence that the tree encroached on Ms. Russell’s property and no evidence that the tree “presented an imminent danger of harm to her property prior to the storm that caused the tree to fall,” the Court held that the neighbor was not liable for damage caused by the tree because he was not on notice that the tree might fall.
It appears from this decision that if a healthy tree or limb from your neighbor’s property, which does not encroach on your property, causes damage to your property, then your neighbor may not be responsible for the damage because your neighbor was not on notice that the tree might fall.
However, if your neighbor’s tree is dead or decaying and your neighbor knows or has reason to know of that condition, then your neighbor may be responsible for any damage that the tree causes to your property. Cases involving dead or decaying trees are analyzed under ordinary negligence principles, in which liability often turns on whether landowner was on notice that the tree might fall.
In Lane v. Curry, 92 S.W.3d 355 (Tenn. 2002), the plaintiff, Ms. Gloria Lane owned a house located next door to a house owned by the defendant, W.J. Curry & Sons. The defendant had three large and healthy oak trees located on its property near Ms. Lane’s home. The trees were much taller than either house houses and had limbs that hung over Ms. Lane’s house. At some point, a large limb from one of the defendant's trees located between the parties' houses broke off and fell through the plaintiff's roof, attic, and kitchen ceiling, causing rainwater to leak into the interior of her home.
The Lane Court addressed the question of whether an individual is entitled to cut a neighbor’s tree limbs if they are encroaching on your property and whether the neighbor is liable for any damage caused by trees that encroached on your property. Historically, Tennessee has followed the “self help” theory, which allows a property owner to remove any trees or limbs that encroach on his property. In Lane, however, the Court adopted “the Hawaii approach,” which holds that living trees and plants, which are ordinarily not nuisances, can become nuisances when they either cause actual harm or pose an imminent danger of actual harm to neighboring property. When such trees become nuisances, other landowners can seek appropriate remedies. The Court made sure to clarify, however, that it did not change existing case law that a landowner may, at his own expense, cut away encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance.
It appears from this decision that if a tree or limb from your neighbor’s property, either healthy or unhealthy, is encroaching on your property, then you are entitled, through self help, to remove the encroachment at your own cost. If the tree or limb then causes damage to your property, the cases described above indicate that your neighbor’s liability will hinge on whether the tree or limb in question was a nuisance and/or whether your neighbor knew of the nuisance.

DISCLAIMER: This post is provided for informational purposes only. This is not legal advice and does not establish an attorney-client relationship between the author and any reader. I have studied the law on these issues and feel that I have a strong understanding of such issues. However, we live in a day and time where it seems like everyone is looking to sue. Therefore, consult with a lawyer prior to cutting or otherwise removing any tree or limb from neighboring land that you believe is encroaching on your property.

No comments:

Post a Comment