Indiana law. What happens when a tree in my yard falls into the neighbors yard due to a tornado. Our insurance says that our tree and the damages sustained by our neighbor's house and the removal of the tree is to be paid for out of his insurance, not ours. Be he has no insurance on his house and now two years later he is suing us in Small Claims court for the removal of the tree and damages to his house. Finally after two years of asking for his bills, he has submitted them and we will submit them to the insurance company and they will refuse due to the fact that his insurance legally pays, but he has none. What does the law say?
Country relating to Question: United States
State (if USA): Indiana
For two years we asked for copies of receipts to forward to our insurance company. We are about to submit them. Before we can do that however, he on Thursday is set to final a small claims complaint in small claims court.
Unfortunately, your insurance is right. Under common law of property, when a tree is on one piece of land, any part of that tree that falls on or encroaches on neighboring land is the liability of the neighboring landowner to remove. The Indiana Supreme Court follows the natural condition rule under common law, which states that a landowner was not liable for harms caused to others outside of his land caused by a natural condition of the land. The Indiana Supreme Court in Valinet v. Eskew, 574 N.E.2d 283, 285 (Ind.1991), modified the rule to add that while this would be the general rule, but that the Courts would impose liability ... "when landowners had actual knowledge of a dangerous natural condition, regardless of location,” Id. In order to impose liability of the owner of the tree, the Indiana Courts use a three-part duty analysis in Webb v. Jarvis, 575 N.E.2d 992 (Ind.1991) to determine whether a landowner in a residential or urban community owes a duty to prevent an unreasonable risk of harm to adjoining property owners or their property resulting from trees growing upon the landowner's property. The relationship, foreseeability and public policy factors all support the existence of a duty. The relationship is significant in that it is between the owners of adjoining property. There is a high degree of foreseeability of harm. Finally, the landowner is best situated to prevent or minimize the harm by trimming the tree upon the landowner's property. Thus, they would have to show that for you to be liable you failed to inspect the tree regularly, the tree presented an unreasonable risk of harm and you failed to maintain the tree then the court could hold you liable. However, if this was simply caused by natural conditions, you would not be liable and it would be his liability.
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What constitutes inspection of the tree? Is this determined by written records or by noticing that the tree is not bending over at an angle that shows it will fall of its own accord? When the winds from the tornado toppled the tree, it was green and would not have fallen unless the winds literally twisted it out of the ground.
It would be based on witness Testimony ordinarily that you routinely looked at the tree and did not seen any defects. Also, if you get an expert to look at the tree now to determine it was green and healthy when it fell that would be used to show it was not a known or likelihood of danger.
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