If you own a home on a lot with mature trees, like many of us do, you should take time to look at your trees and determine whether or not they can be a threat to you or others. To limit your liability, you need to be sure that your trees are healthy and structurally sound, and you must, under the law, manage them so they will not cause damage to the public.
What we are talking about is the concept of “negligence,” defined as “The failure to do what a reasonable person should do to prevent harm,” and/or “Doing something a reasonable person should not do to cause harm.”
Liability, caused by trees, depends on whether the accident is considered an "act of God," or it is an "act of negligence" on the part of the property owner. To avoid the charge of negligence when a tree fails and causes property damage, personal injury, or death, the law looks to see if the owner was a reasonable person, who acted with reasonable care. If he or she knew that a tree on his or her property had visual signs of decay or physical defect, and failed to act, they may be considered negligent. If the tree owner damaged the tree, by creating a trench for an irrigation line through the root zone, that too could be considered negligence.
So what do you do to avoid the charge of negligence? First, inspect your trees for defect. If you notice something that looks suspicious, call in a tree expert to inspect the tree(s) and document the issue. If you are concerned that some site activity may cause structural problems for your tree(s) check with a qualified arborist. Then, if you then follow the expert’s recommendations, you may avoid being charged with negligence. The only duty the landowner has is to act reasonably.
In other words, if the problem with the tree was not one an average person (layman) could understand, then it may be determined that the tree failure was an act of God. However if the owner had ignored warning signs like rot, falling branches, and loss of crown (the branches and leaves above the trunk), then the owner can be charged with negligence. Now, due to recent court rulings, even though trees seem healthy, if they fall onto the public right of way, the owner may be held responsible for any damage or injury.
So what do you do to protect yourself?
1. Have a documented inspection by a qualified arborist or urban forester to check for any structural problems.
2. Remove risky trees or limbs.
3. Have a qualified expert prune to remove diseased, dying or dead limbs, or other threats. Improper pruning can damage trees and create long term decline and structural problems. This can lead to liability exposure.
4. Remove limbs that obstruct drivers' or pedestrians' views. Again, be sure the work is performed correctly.
5. Avoid construction damage to roots by driving over them. Even two or three trips with a car or truck over tree roots can smash the soil and crush roots, causing root loss, tree decline, and even eventual death if the compacted area is significant.
6. Avoid cutting roots for irrigation lines or other underground utilities.
7. Do not pile soil or put pavement over root zones. This prevents the roots from getting air and oxygen.
If you cannot work out a solution on you own to keep your trees safe and healthy, the best thing is to call an arborist who is certified by the International Society of Arboriculture (ISA). To become certified, they must pass a test and do continuing education which keeps them up to date on proper tree management. To find an ISA Certified Arborist, just go to ISA’s web page and you can search for an arborist in your area www.isa-arbor.com. Also, you should check with your insurance company to see what coverages you have, or might need in case an incident occurs.
Remember, not only do properly maintained healthy trees add value and enjoyment to your life and benefit the entire community, they may also keep you out of the lawyers' food chain.
Sam Hand, Jr. is a member of the Florida A&M extension faculty. Stan Rosenthal is extension agent emeritus with Big Bend Forestry, University of Florida.