OLR rpt 2017-R-0221 – Trees Falling onto Neighbor’s Land

The State of Connecticut’s Office of Legislative Research (OLR) has issued a report on tree liability that is certain to challenge many arborists’ understanding of this topic.   The report, entitled “Trees Falling onto Neighbor’s Land”, discusses the extent of the liability that can be placed on a neighbor who owns a tree that fails, when that tree causes damage to a second neighbor’s property and also when the first neighbor has been given notice beforehand that the tree is likely to fail.  The generally held understanding is that, in situations in which the tree is not anticipated to fail, the owner of the tree cannot be held liable.  The cost of cleanup is the responsibility of the neighbor onto whose property the tree fell.  However, it is also commonly believed that, when the owner of the tree has been notified that the tree is likely to fail, he or she can be held liable for the clean-up and damages if they did not act on this information.  The usual means for notifying the tree’s owner, according to this view, is for the second neighbor, the one who has the concern that the tree is about to fall, to hire an arborist to determine that the tree is likely to be a problem and then let the first neighbor, the tree’s owner, know that there is the potential for a problem.  This notification is usually done through such means such as a certified letter.

By referencing tow recent Connecticut court cases, this report knocks down that second commonly held assumption.  In each of these cases, the courts reached the conclusion that the tree on the first neighbor’s property is a “natural condition of the land” and not the responsibility of that neighbor should the tree fail.  In the first court case referenced, clear prior notice was given the owner of the tree that it was defective, but the court was not persuaded that knowing that fact placed any specific responsibility on the tree owner to do anything about it.

It does not appear that an arborist was involved in the inspection of this tree.  Nor is there any indication that it would have made a difference in the ruling if an arborist was involved.

It is interesting to note that, in a prior OLR report from 2015, the same attorney suggests that common law supports the previous understanding – that knowledge of a defective condition in a tree could make an owner liable if he or she does not take action (OLR 2015-R-0278).  Clearly, these two recent court cases have convinced the author that the point of view of the courts on this matter may be shifting.

In the background of these two court cases are a series of bills that have been proposed in the State Legislature.  In each year between 2014 through 2017, a bill has been proposed that would establish in state law requirements regarding these two situations.  In 2014 the bill passed but was vetoed by the Governor, based on concerns that that version was overly binding on tree owners.  The subsequent bills each failed to pass in their respective legislative sessions.  This legislative history is also outlined in the report.

The Office of Legislative Research is the Connecticut General Assembly’s office of non-partisan research on bills and issues of interest to legislators.

Given this report, it will be interesting to see if this bill is brought upon again during the upcoming 2018 session.