This week’s question comes from Jannette M., who asks:
Q: “During the recent storms, I had a neighbor’s tree fall onto my roof and part of it came into the bedroom where my son was sleeping. Thank God my son suffered only minor physical injuries, which required only an ER visit and a sling, but now he is afraid to sleep alone and has been having nightmares. The tree is out by the sidewalk. I know it’s not on my property because of where it is located on his side of the fence. I also saw on the news where a woman was crushed and killed in her car by a falling tree/branch. What is the law on this kind of thing? This tree has been a sore subject between us as it has been hanging over my yard for years causing lots of leaves, branches and other junk to fall on the roof, clog the gutters, damage my roses and nearly landed on my car. I have spoken with my neighbor about this on several occasions including the last major storms several years ago, when another limb fell on the fence. He repaired the fence, but didn’t do anything to trim the tree or otherwise make it safe. The branch that fell on my house was from the same “crotch” which showed rot after the prior branch came down. The only thing that has been done to the tree is it was cut one time, about a year ago, by the city, because it was blocking a stop sign. When I confronted my neighbor, he said that he didn’t think he owed me anything saying that it’s probably a city tree and even if it wasn’t, it was an “Act of God.” I have reported it to my homeowner’s insurance which stated that it would repair the property but that my insurance did not provide compensation for the personal injuries suffered by my son. Does my son have a right to collect compensation for his physical and emotional injuries and if so, from whom?
A: Dear Jannette, what a terrible and frightening ordeal. Thank God your son was not more seriously injured or killed. I have handled several falling tree death cases in my career and in each instance they were preventable if only the ailing tree had been trimmed or cut down before a storm caused fatal consequences.
Each city has separate ordinances regarding tree maintenance along the roadway/sidewalk. If the tree is very close to the road/sidewalk, then a city ordinance may require the adjacent landowner to maintain the tree. Some trees are exclusively maintained by the city. If this occurred in San Francisco, The City may be liable for failure to maintain the tree. In 2016, the voters passed Proposition E, StreetTreeSF which amended the City Charter to transfer responsibility for the care of the City’s 124,000-plus trees and surrounding sidewalks from property owners to Public Works. The law took effect July 1, 2017 and provides for $19 million to be set-aside annually in the City’s General Fund to fund StreetTreeSF.
The City has prioritized pruning trees based on safety considerations, to correct structural flaws and to gain necessary clearances for overhead wires, traffic signs and signals, adjacent buildings and traffic flow. If you are in San Francisco, the tree trimming around the sign, if it occurred since July 1, 2017, may have been part of the StreetTreeSF priority trimming program.
For the City to remove a tree, unless it creates a dire emergency, the City follows a public notice process before the tree is cut down so citizens can voice their concerns including opposition to the removal of the tree or requesting trimming instead of removal. An individual can still prune their own tree as long as it is undertaken in accordance with the June 27, 2006 CCSF Pruning Standards.
If the City is responsible for maintaining this tree they may be held responsible for the damage caused to your son under the doctrine of Dangerous Condition of Public Property. Under this doctrine a public entity may be responsible for injuries caused by non-trivial defects in public property that create a foreseeable risk of harm, if the City knew, or should have known with reasonable diligence, about the defect with sufficient time to remedy it. Here, as the tree had been trimmed previously by the City, a suggestion of knowledge is raised as they would have been physically present, examined and evaluated the tree, and trimmed it. If the hazard/rot was in existence at that time, and the City did not remedy it, liability may attach. Additionally, if the City arborists did something in trimming the tree that increased the risk of the tree falling on to your house, such as trimming most of the weight from only the street side, they may be held liable under a simple negligence theory.
Next week, I will provide an analysis of the facts assuming the tree was on private property, away from the street right-of-way, where the examination centers on the private landowner’s responsibility.