Courts in Connecticut have ruled that a property owner may have liability for damage or injury caused by a tree falling from his property onto his neighbor's land if the he knew or should have known that the tree was in poor condition prior to a storm. A landowner generally has notice of a potentially dangerous or hazardous condition when, in the exercise of reasonable care, he would have seen visible signs of decay or weakness. Reasonable care includes periodic property inspections. A landowner cannot avoid liability by "turning a blind eye" to the conditions of his trees. If he does, a court may find that he had "constructive notice" of the tree's condition.
Once a landowner has actual or constructive knowledge of a dangerous condition, he must take steps to eliminate the danger. However, the landowner is not required to "consistently and constantly check all trees on his property for non-visible rot. [T]he manifestation of decay must be visible, apparent and patent." In other words, a landowner must take "reasonable care" to make sure that trees on her or his property are safe.
Some cases have ruled that this duty to inspect is less stringent in "rural areas" than in "urban areas." However, other courts have decided that this distinction may have been important in earlier times where large tracts of land were owned for farming purposes, but is inapplicable today. Rather, the degree of care will depend upon the circumstances of any particular situation regardless of the neighborhood in which the tree is located. For instance, hazardous trees adjacent to roads and highways will create a higher duty of care than those located deep in untraveled nature preserves.
In summary, if one has suffered injury or damage caused by a fallen tree located on a neighbor's property some of the questions which need to be addressed are: Was the tree in fact located on the neighbor's property? If so, did the neighbor have a duty to inspect the fallen tree? Did he or she fail to do so? Was the tree in fact hazardous? Did the falling tree cause the injury or damage? Were there any other circumstances causing the injury or damage?
One of the lessons to be learned by the havoc caused by fallen trees and branches in the storm is to keep a reasonable eye open for dangerous conditions on your property which may exist or be developing ... and correct them promptly.
Eugene Cederbaum is an attorney practicing in Westport, where he also lives. His e-mail address is email@example.com.