My job is to write legal articles that will be of interest to you readers.  That can be a challenging task.  Each article requires a topic that everyone can relate to.  The aftermath of our recent ice storm gave me an idea for this month’s topic: liability for broken trees.

I will bet a day’s pay that each of you suffered some type of economic loss from that storm.

I will also bet that your loss was related to broken trees.  They knocked out power lines, closed roads, tore up roofs and left us all with a lot of expensive cleanup.  They literally turned our lives upside down.  That got me thinking about liability for those broken trees.

We seldom think of trees in a liability sense.  On the contrary, we always think of trees as one of nature’s majestic wonders. But as much as we love and admire our trees, they do have their dark side.  When trees come crashing down around us, they become ugly and destructive.

When we become victims of the damage, we ask the same old question: Who is liable for my loss? Here is a shot at answering that question.

Insurance Liability

As you might expect, the first candidate for liability is your own insurance company.  If you own a home or business, you no doubt have a casualty policy that insures your property against damage.  In most cases, the policy will provide insurance protection against damage caused by ice and falling trees. Your policy will also provide additional coverage for other related loss, including debris removal, food spoilage and temporary living quarters.

However, casualty policies can be tricky little devils – especially in cases of trees.  You may have a claim that fits within an “insured coverage” under the policy, but is excluded under another part of the policy.  Sounds like double talk, doesn’t it?  A few simple illustrations will bring some clarity to this double-talk.

Ice causes a tree to fall through your roof. Because of the damage, you will have a “property loss” claim for the repair of your roof.  You will also have a “debris removal” claim for the removal of the tree.

Ice cause a tree to simply fall on your roof. In this situation, you do not have a “property loss” claim since your roof wasn’t damage.  Furthermore, even though your policy provides coverage for debris removal, you do not have a “debris removal” claim.  A policy will typically exclude payment for debris removal if your structure was not damaged by the debris.

Ice causes a tree to crush your car. Most casualty policies exclude automobiles, so you probably don’t have a claim.  However, if you have comprehensive coverage under your car insurance policy, you will have a claim under that policy.

Ice causes a tree to knock you’re your electric power, which spoils your food. Even though your policy provides coverage for food spoilage, you may not have a claim since the tree – not the ice – caused the power to go out.

Remember – as with all contracts – you must read the policy to determine your specific coverages and exclusions.  Each insurance company has its own specific coverages and exclusions.  And take your time reading that policy.  There are a lot of twists and turns to keep up with.

Your Liability

The second candidate for liability is the property owner.  That’s right, you. If you own a home or place of business, you may be liable for your trees.

A homeowner’s liability is somewhat limited.  Liability only kicks in when the owner has actual notice of a dangerous condition in the tree. For example, if you know that decay in your tree may cause the tree to fall, you better take it down.  If you don’t, you may be held liable for the consequences.

Business owners’ liability is more expansive because they invite customers to come upon their premises. They have a duty to their customers to make their businesses reasonably safe.  You should periodically inspect your trees to ensure they will do no harm.  If you discover a defect of condition that can foreseeably result in loss or injury, you must fix it.

I wonder if Joyce Kilmer pondered these liability issues when she wrote her poem “Ode to a Tree?”

 

Printed in Four Rivers Business Journal (Paducah Sun), March 2009.