Wind, Rain, and the Trees in Norman Rockwell Land

It was very wet in Norman Rockwell Land the Saturday of the first week of April. It had rained for days, off and on. Chilly, miserable lion weather that everybody wished would go out like the promised lamb. The ground was saturated and everything smelled, well, wet.

Then the wind whipped up and blew pretty steadily all day. It could be heard in the trees. Neighbors' lawn furniture was being retrieved from others' lawns all afternoon.

Around 3:00 pm, all hell broke loose on our block: creak, snap, dull thud, and the noise of sirens and utility emergency trucks. One of the 100-year-old trees that are the hallmark of Norman Rockwell Land had been uprooted and crashed through the side and roof of the house across the street from me. A small child had been sleeping in the bedroom where the tree came through, spraying bricks from the wall onto the bed. She was still sleeping peacefully and unharmed when her mother ran into the room. God takes care of infants and drunks, it is said.

Within hours, a tree-service crane had removed the tree, cut it up, and carted it away. Tarps quickly were spread over the hole in the house. Restoration is underway as I type this.

Why do we, readers of Claims, care about this? Because the tree is (was) just a foot or two inside the neighbor's property line and not the property of the homeowner suffering the loss. Sunday, the neighborhood gossip was that the old, huge tree was somewhat “rickety.”

How are we going to adjust this? As it worked out (and it is as it should have worked out), the homeowner called his agent's 24-hour line Saturday and was told to get a tree service out immediately to start removal of the tree and cover the hole to prevent further damage from the still blowing wind and drizzling rain. Within six hours, the tree was history.

As between the insurers, what is the situation? Is this a first-party property loss or a third-party liability situation? An aphorism at law says, “Ownership connotes liability.” So, there is our answer: the tree owner is liable for the damage to the neighbor's house.

Wrong. The tree owner probably is not liable for damage, absent extenuating circumstances. Case law research reveals that this pretty much is a first-party loss, payable under the damaged homeowner's insurance HO-3 policy for the dwelling damage (and under the peril of falling objects for content damage).

How's that? The tree was rickety.

Rickety does not seem to cut it. The original English and American rule (which has been modified to some extent, as will be noted) is a well established principle of common law expressed in Prosser, Law of Torts, 4th Ed.: “The one important limitation upon the responsibility of the possessor of land to those outside of his premises has been the traditional rule of both the English and the American courts, that he is under no affirmative duty to remedy conditions of purely natural origin upon his land, although they may be highly dangerous or inconvenient to his neighbors.”

This probably originated during the Olde English days of fiefdoms and grand estates. Of course, one was not liable for a situation that arose naturally (the decaying of a tree), when thousands of trees were situated around the premises. The law has changed, but not too much.

Cornett v. Agee, 143 Ga.App. 55, 237 S.E.2d 522, Ga.App. 1977, is a good example. In that case, an urban landowner was liable for damage caused in a neighboring yard by the fall of a pine tree growing on his lot. The fall, apparently, was due to a combination of high winds and visible rot in the trunk of the 75- to 100-foot tree standing on the lot line and leaning toward the neighboring yard. The situation had been called to the defendant's attention with advice to remove it.

See all of the elements that caused the non-liability standard to bend? Visible rot in the trunk, leaning visibly toward the neighboring yard, the situation's having been called to the defendant's attention, advice to remove it. There also is some distinction between trees in rural and urban settings. The criteria tighten as we move toward town, where the standard of knowledge lessens.

In the city, an urban landowner may be responsible for, at the least, cursory inspection of premises and conditions. Even in this case, however, the judge said, “We are specifically limiting liability in this case to patent visible decay and not the normal usual latent micro-non-visible accumulative decay. In other words, there is no duty to consistently and constantly check all pine trees for non-visible rot, as the manifestation of decay must be visible, apparent, and patent so that the landowner should be aware of a potential problem.”

Absent all these factors, the original rule applies. It can be stated that the cases show that, to avoid liability for damage to an adjoining landowner when a rotted tree falls, an urban tree-owner has no duty to constantly check trees for non-visible rot and, to be liable, the manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with rot and cause damage.

Rickety is not the standard, even if the tree were somewhat suspect. There was no visible rot in the trunk, no precarious leaning over the neighbor's home, no notice that anyone was worried about the tree's falling. The homeowner was under no order from the city to remove a public nuisance. Absent these things, the damaged homeowner's insurer will respond, and there is not much room for any subrogation action.

One FC&S editor did wonder about the “damage to property of others” that is occasionally referred to as good-neighbor coverage. This clause pays for damage “caused by an insured” for which there is no legal liability. If the clause said, “caused by property of the insured,” there would be a point here, but the tree is not an insured so the provision does not apply.

Ownership does not always connote liability after all.

Bruce Hillman is editorial director, Professional Publishing Division, of the National Underwriter Co.

The FC&S Claim Queue is prepared and written by the editorial staff of The Fire, Casualty and Surety (FC&S) Bulletins, the most widely used encyclopedic reference service devoted to insurance policy interpretation and coverage topics. FC&S is published by The National Underwriter Company.