The Coastal Post - February, 1996

Killer Trees Are Number One

BY BARRI KAPLAN BONAPART

What has been the number one cause of death, injury and property damage from this year's bad storms? Car accidents? Floods? Electrocution? No. The answer is found right in our backyards. It's falling trees. On December 12, two Northern California women were killed while sleeping when trees crashed through their roofs, and a man died when a tree hit his car. On the same day, dozens of others were injured and scores of houses and cars were smashed by falling trees.

Is there anything that you can do before the next storm to protect you and your neighbors? And, what can you do if you are injured or your property is damaged by a neighbor's tree?

First, identify the problem. Certain trees, because of their shallow root structure and top-heavy growth are more likely to be hazardous. These trees include certain types of eucalyptus, Monterey pine, acacia, Monterey cypress, Douglas fir and bay. If you think that a tree on your or your neighbor's property poses a threat, have a certified arborist or urban forester come out to inspect the tree and give you an opinion.

Even more stable varieties of trees can become hazardous due to improper pruning. Topping a tree (cutting the top off a tree, usually for increased light or view) can create a structurally unsound tree. Lollipopping (cutting the lower branches off and leaving a tuft of growth at the top) and lion-tailing (trimming the inner branches to leave growth on the ends) can also increase risk.

If you think a tree on your neighbor's property poses a threat, have a certified arborist or urban forester inspect the tree.

If an expert confirms that a tree on your property poses a hazard, you should trim it or cut it down. If the tree belongs to a neighbor, there are several ways to approach the problem.

Talk first. Do not assume that your neighbor is aware of the dangerous condition. Talk to your neighbor and explain the situation. Once informed, the neighbor may be quite willing to pay for some or all of the expense involved of eliminating the hazard.

Put it in writing. If the neighbor is not willing to take corrective action, write a letter explaining your concern, enclose a copy of the arborist's report. That way the neighbor is on notice that he or she will be held responsible if you or your property is harmed.

Get help. Next, notify your local government. Many cities will step in to correct, or make the owner correct, dangerous conditions. Some cities will remove the hazard and bill the owner if the owner refuses to take responsibility.

Do it yourself? Legally, you can cut off offending limbs up to the property line as long as you do not cut down or destroy the tree.

However, taking matters into your own hands is risky. If you cut branches that are on the neighbor's property or cut in such a way that mortally wounds the tree, you could be sued or arrested for trespass. You could also be subject to liability for tens of thousands of dollars for wrongfully cutting the tree.

To sue or not to sue. You can bring a lawsuit to have the tree declared a private nuisance. A court can direct a tree owner to correct the problem.

If you are only asking for compensation for loss of use and enjoyment (for example, you no longer go into your back yard for fear of injury), you can sue in small claims court without a lawyer for up to $5,000. If you want the tree trimmed or removed, you will have to file in Superior Court. Although you can represent yourself it is not a user-friendly process to most lay people. A lawyer experienced in tree and neighbor law can be an asset.

Going to court should be a measure of last resort because it can be expensive and time-consuming and can create long-lasting animosity between neighbors.

What can you do it your neighbor's tree has already come crashing down onto your property?

Insurance. Notify your homeowner's insurance carrier. Most policies provide coverage for damage caused from falling trees. If you are the tree owner, your policy may also cover damage to your neighbors, even if the damage was caused by your carelessness. If you do not feel you have been adequately compensated for your loss, do not sign a release or any document in which you give up your right to bring legal action.

Litigation. If you believe you have not fully been compensated from insurance proceeds, you may want to pursue a lawsuit. You are entitled to compensation for the cost to repair and clean up the property. Get written estimates for all of the work required. If, for some reason, the property cannot be repaired, you are entitled to collect the difference in your property value before and after the damage, as determined by a real estate appraiser.

If you or family members suffer injuries from a neighbor's tree, you are entitled to be reimbursed for medical bills (even those already covered by insurance) and lost wages. In some cases, you may be entitled to compensation for emotional distress.

If you can demonstrate that the neighbor showed a conscious disregard for your rights or safety, you may be entitled to punitive damages. For example, if you pointed out the dangerous condition, and the neighbor refused to act, the court can award additional damages aimed at punishing your neighbor for his or her failure to take corrective action.

You may prevail in court if you can show: 1) the tree that caused damage belongs to your neighbors, 2) your neighbor knew or should have known of the hazard and did nothing to prevent it, and 3) the tree damaged your property or injured you. You also have to show the value of the damage or injury.

Although it may cost several hundred dollars to stabilize or remove a hazardous tree, it may well be worth it to avoid the potential problems.

Barri Kaplan Bonapart is a San Francisco attorney specializing in tree/neighbor law and commercial litigation. She can be reached at (415) 982-6393.