The tragic accident at Jackson Square in July of this year is a reminder that everyone in Louisiana should be aware of tree safety and liability issues in general and particularly as relates to windstorms and hurricanes. What ae the factors that could affect a landowner’s liability for damage caused by all or part of a tree falling onto the person or property of others?
Tree Liability Generally
Under Louisiana’s civil law, trees are presumed to belong to the owner of the ground from which they grow, unless separate ownership is evidenced. La.Civ.Code art.’s 462, 465 and 491; Allen v. Simon, 04-4 (La. App. 3 Cir. 12/08/04); 888 So.2d 1140, 1144. A tree owner may be liable for damage caused by the tree under La. Civ. Code art. 2317 which, as of 1995, stated in pertinent part:
“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. (emphasis added)
As a result, up until 1996, under this prior language of art. 2317 a tree owner was strictly liable for property damage (and personal injuries) caused by a tree. Loescher v. Parr, 324 So.2d 441, 449 (La. 1975); Greene v. Fox Crossing, Inc., 32774 (La. App. 2 Cir. 03/01/00); 754 So.2d 339, 343. But as a result of Louisiana’s tort reform laws passed in 1996, a sentence was added to art. 2317 (Acts 1996, 1st Ex. Sess., No. 1), which states: “This, however, is to be understood with the following modifications.” In the same Act, this seemingly absolute rule of law was indeed “modified”, and strict liability eliminated by the enactment of “following” La. Civ. Code art. 2317.1, which states:
“The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.” (emphasis added)
Thus, the typical tort standards for defining negligence, i.e., the violation of a duty of “reasonable care” or that the defendant “knew” or “should have known,” apply as of 1996 to art. 2317 scenarios rather than the previous concept of strict liability. Parenthetically, “res ipsa” is a legal doctrine shifting the burden of proof on causation from the plaintiff to the defendant when all other possible causes have been effectively ruled out. If applicable, this can lessen the plaintiff’s burden of proof considerably.
Under the current jurisprudence interpreting art.’s 2317/2317.1, to recover under those articles for damages caused by a defective thing, the plaintiff must now prove that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Moody v. Blanchard Place Apts., 34,587 (La. App. 2d Cir. 6/20/01), 793 So. 2d 281.
These general principles of Louisiana tort law apply to fallen trees and branches as well. Consequently, in order to avoid liability for a neighbor’s property damage (or personal injuries) from fallen trees following a severe storm, tornado or hurricane, a fallen tree owner must establish that the plaintiff’s property damage caused by the tree was due directly and exclusively to natural forces which could not have been prevented in the exercise of reasonable care.
For example, in Brown v. Williams, 36863 (La. App. 2 Cir. 07/31/03); 850 So.2d 1116, 1123-24, a tornado had uprooted a number of trees in an area but the defendant’s tree had broken in half due to rot, resulting in damage to a neighbor’s property. In affirming the trial court’s judgment in favor of the plaintiff, the court of appeal stated:
“The defendants acknowledged that during their custody of the tree, a period of more than 25 years, they did not perform any maintenance of the tree whatsoever. They did not take the step of painting over the spot where (a) limb had broken off ten years earlier and apparently had not even pruned the branches of this large oak tree. Defendants accepted the benefits of the tree but refused to act to provide minimal care for the tree or to assess the health of the tree, despite the risk of significant harm to their neighbor or themselves if the tree fell due to disease or weather conditions. Based upon the particular circumstances of this case, we cannot say the trial court was clearly wrong in finding that the defendants should have known of the tree’s defective condition in the exercise of reasonable care and could have prevented this incident with ordinary maintenance.” Brown, 850 So.2d at 1123
In contrast, in Hoerner v. Title, 2007-0588 (La. App. 4 Cir. 09/26/07); 968 So.2d 217, 218, neighbors were denied recovery for damage to their backyard brick wall, pool, and landscaping caused by the adjacent property owner’s trees which occurred during Hurricane Katrina. The plaintiffs presented no evidence of a total lack of maintenance or diseased trees. Instead, they claimed that the trees were simply allowed to grow “too close” to the Plaintiffs’ home. The court of appeal found that the neighbors’ complaints- “…over the years, as depicted in photographs taken shortly before Hurricane Katrina, primarily concerned the overgrowth of the property owner’s trees into the yard. However, as shown by the pictures taken after the storm, the trees themselves were blown over and into the brick wall, causing bricks to break off and damage the pool and other property of the {plaintiffs}. It was not the overgrowth that did the damage.” Hoerner, 968 So.2d at 220
Accordingly, as these cases make clear, there is no hard and fast rule of law for tree liability from storm damage given the changes in Louisiana tort law in 1996. Every claim or case involving damage to a neighbor’s property caused by a property owner’s fallen trees will be decided on a case-by-case basis applying the jurisprudence as set forth above.
Act of God/Force Majeur Defense
There is one defense of particular importance in tree liability cases in Louisiana, however. An Act of God in common law terminology is a concept similar to the civilian doctrine of force majeure, a superior or irresistible force that is, in the legal sense, sufficient to excuse a defendant’s neglect of a duty and relieve him of liability to a plaintiff. This concept, or defense, which excuses a defendant from liability, has been defined as “a providential occurrence or extraordinary manifestation of the forces of nature which could not have been foreseen and the effect thereof avoided by the exercise of reasonable prudence, diligence and care or by the use of those means which the situation renders reasonable to employ.” Southern Air Transport v. Gulf Airways, 215 La. 366, 40 So. 2d 787, 791 (La. 1949).
The fact that no human agency can resist an Act of God “renders misfortune occasioned solely thereby a loss by inevitable accident which must be borne by the one upon whom it falls. . ..” Rector v. Hartford Acc. & Indemnity Co., 120 So. 2d 511, 515 (La. App. 1st Cir. 1960). Consequently, recovery for injuries caused by extreme weather conditions may be precluded by the application of this rule. Rector v. Hartford, supra, at 515. In other words, Act of God can be a complete defense to tree liability.
But when an Act of God combines or concurs with the conduct of a defendant to produce an injury, the defendant may be held liable for any damages that would not have occurred but for his own conduct or omission that constitutes a breach of a specific legal duty owed by the defendant. See Saden v. Kirby, 94-0854 (La. 9/5/95), 660 So. 2d 423. This can make for complex factual scenarios.
In the context of tree liability, the courts look to the facts of each case to determine not only liability under art.’s 2317/2317.1, but to determine the applicability of the Act of God defense. For instance, the defendant in Brown, supra, a fallen tree factual scenario, failed to meet that burden of proof to establish that the property damage caused by the subject tree was purely a result of natural causes. Brown, 850 So.2d at 1123-24; the defendant in Hoerner, supra, another fallen tree factual scenario, did establish that defense, in addition to establishing the lack of a pre-existing defect in the fallen trees. If brought to court, the outcome of these tree liability cases are decided at trial simply by the conclusions of the trier of fact, judge or jury, Mitchell v. State, 50432 (La. App. 2 Cir. 03/23/16), 193 So. 3d 152, 161, and are rarely decided on summary judgment. Wells v. Town of Delhi, 51-222 (La. App. 2 Cir. 04/05/17); 216 So. 3d 1095, 1101
Right of Reimbursement
Significantly, even if a hurricane has occurred and an Act of God (or in civilian parlance, force majeur) defense has been established, the civilian concept of vicinage (La. Civ. Code art.’s 667-669), or the obligations owed between neighbors, may also apply to provide a neighbor with a separate cause of action for “reimbursement.” This is separate and apart from the tort liability analysis. Vicinage is a quasi-delictual concept unique to civil law which bars a property owner from using the property in a manner that interferes with the neighbor’s use of property.
More specifically, under art. 668, a tree which grew on an owner’s property remains the property of that owner even after it falls on a neighbor’s property. The decision to leave or “abandon” that tree on the neighbor’s property is deemed a separate act and breach of the obligation to the neighbor not caused by the original natural event. Thus, a cause of action for “reimbursement” of the costs for the removal of an “abandoned” tree arises in favor of the neighbor under this scenario regardless of the tort liability analysis. In other words, this is a limited remedy only for reimbursement as the rule of law under art.’s 2317/2317.1 outlined above barring claims in tort for a neighbor’s property damage caused by fallen trees absent proof of knowledge of a pre-existing condition such as rot in the tree, remains in effect.
This reimbursement exception to the general rule of law was explained in Allen v. Simon, 04-4 (La. App. 3 Cir. 12/08/04); 888 So.2d 1140, which involved a neighbor’s claim for reimbursement for tree removal after a tree fell on the neighbor’s house and pool during Hurricane Georges. The neighbor demanded that the tree owner remove the tree, but he refused, so the neighbors claimed the tree had been “abandoned.” In his answer to the neighbor’s lawsuit, the defendant property owner asserted an Act of God defense. The neighbor responded that Act of God was inapplicable since he was not seeking damages under tort law, only reimbursement under the concept of vicinage. The court of appeal agreed, stating:
“Were it not a fallen tree, but rather a swing set, a boat, or even an automobile, it is likely the Defendant’s position would not be the same. Surely, he would not argue he was divested of ownership of any property he deemed valuable just because a wind caused it to land on the neighbor’s property. (The Defendant’s) ownership of the tree, thus, was not divested by wind or whimsy. His obligation to take steps to remove his property off his neighbor’s property has long been recognized.” 888 So.2d at 1145.
Insurance
These tree liability scenarios may also raise interesting insurance issues. For instance, whether the property owner’s removal costs for the fallen tree are insured as a first-party property claim would be subject to the terms and conditions of the property owner’s insurance policy. Such “debris removal” claims are usually restricted to removal of trees located on a covered home, “dwelling,” or “structure” which would seemingly eliminate the neighbor’s property. Also of concern is the issue of whether an insurer would respond to a neighbor’s third-party liability claim for reimbursement. This presents a different question since the property owner’s liability would arise not from the condition of the tree or the storm but from the owner’s subsequent decision to “abandon” the tree. This would arguably be an intentional act, which is generally not covered by insurance. But then, if the neighbor removed the tree before requesting the property owner to remove it, the insured property owner would not have abandoned the tree. These as well as other factual and insurance scenarios will have to be analyzed on a case-by-case basis.
Conclusion
To summarize, in hurricane or severe storm situations, absent proof of knowledge of a pre-existing condition such as rot in a tree, and/or if a successful Act of God defense is established, a property owner should not be liable in tort for a neighbor’s property damage caused by a tree falling from his property. But a property owner may still be liable under vicinage theories for the costs of removal of the tree if the property owner refuses to remove it or constructively “abandons” it. How or if insurance would respond to claims based upon these theories of liability will depend on the terms and conditions of the applicable insurance policy.
