By Kerry Traynum
One of the biggest surprises of my adult life has been learning the cost of tree removal. It is outrageously more expensive than I—someone with no knowledge of that industry—could have imagined. For most homeowners, this is an issue that thankfully comes infrequently enough that you’ve erased the painful memory completely from your mind just at the moment you encounter the unexpected and shocking cost again. A second runner up for bad grown up feelings is the receipt of a certified letter. Good news rarely requires your signature as proof of receipt. Recently, I experienced these surprises in tandem when a neighbor sent me a certified letter about some dead limbs in a tree on my property.
Although I’ve had trees removed before, this is the first time I’ve had to do so in response to formal notice and in consideration of my potential legal liability. Ultimately, that notice is the trigger for liability under North Carolina law. North Carolina is not a strict liability state when it comes to trees. In other words, if a tree or limb from your property falls and damages your neighbor’s property, you are not automatically liable. Instead, liability depends on whether you had notice that the tree or limb was likely to fall.
The seminal North Carolina case on this issue is Rowe v. McGee (5 N.C. App. 60 (1969)). In Rowe, the defendants owned property that included a large oak tree that was four feet from the property line they shared with their neighbors. The tree was visibly rotting and filled with bees. Defendants’ neighbor notified the tree’s condition at least twice and requested that the defendants remove the tree before it fell on his house. Despite this notice, the defendants allowed the tree to remain standing, and the tree eventually fell on the neighbors’ house, causing substantial damage.
After being sued, the defendants’ attempted defenses read like the greatest hits of bad excuses:
- We gave the neighbor permission to cut down the tree and didn’t realize it was still up.
- The storm that blew down the tree was unusual and unprecedented and was an unforeseeable act of God.
- We didn’t know the tree was in such bad shape.
In addressing this issue, the North Carolina Court of Appeals began by noting that under general common law that “when a natural condition of land causes an invasion of another’s interest in the use and enjoyment of other land, the possessor of the land containing the natural condition is not liable for such invasion.” In plain English, because the defendants did not plant the tree and it occurred naturally, they would not be responsible for the tree falling onto the neighbor’s property, which the neighbors should take steps to protect. However, the Court noted that this legal position could lead to inequitable results and adopted a different approach. The Court, instead, adopted a negligence standard to determine liability, meaning that “where a landowner knows that he has a tree on his property which is in a dangerous condition and which is likely to fall and injure the property of an adjoining landowner, he has a duty to eliminate such danger.” “[T]he defendants were under a duty to eliminate the danger and could not with impunity place such burden to remove the tree on their neighbors.” Put differently, the notice of the potentially dangerous condition created the duty of the owner to eliminate the danger.
Given the law established by the Court in Rowe, the outcome seems obvious, right? The neighbors won. Well, not quite. Remember the bad excuse where the owners said they gave their neighbors permission to cut down the tree and thought they had done so? The Court determined those facts, if believed by the jury, established the contributory negligence of the neighbors who led the owners to believe the tree and the dangers it posed had been removed. A jury, in fact, believed the owners, and the neighbors received no damages. So, while the owners were negligent because they had notice, the neighbors were also negligent because they led the owner to believe they’d taken care of the tree.
Despite the surprising outcome of the case, the moral of this story is that once you are on notice of a dangerous condition on your property, you have a duty to act to remove the danger or face the consequences. As we move into the fall of the year and turn our eyes upward to the changing colors in the trees, understand that you may also notice some dangerous conditions that need to be addressed sooner rather than later. That said, if a certified letter is your first choice of notifying your neighbor of a bad tree, consider softening the blow with some local beer or baked goods because they’ve got a big expense coming their way. I speak from experience.