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My neighbors trees have been leaning over my property for…

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My neighbor's trees have been...
My neighbor's trees have been leaning over my property for some time. I had asked them to pull back their trees and they refused. In April 2010 there was a terrible windstorm in the area causing power outages and fallen trees. My neighbors tree fell onto my property. It fell into my pool breaking the fence around the pool and smashing the heater and filter. He refused to remove the tree. Is he responsible for the damage this caused?
Submitted: 8 years ago.Category: Legal
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Answered in 5 minutes by:
6/14/2010
Lawyer: Ely, Counselor at Law replied 8 years ago
Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 103,583
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I'm sorry for your trouble. What was the amount of the damage in dollars?





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Customer reply replied 8 years ago
So far, we paid $1800.00 to have the tree removed. Now we have to repair the gate and replace the heater and filter, approximately $2800.00.
Lawyer: Ely, Counselor at Law replied 8 years ago
Jeez. Yes, that is negligence if the neighbor did not take proper care to ensure the tree would not fall over. You need to threaten litigation, or actually sue. Let me explain.
Lawsuits are made up of causes of action, in other words, to file suit, you need a cause of action (at least one).



You can file multiple causes of action together. All causes of action have different elements you have to satisfy. For example, “negligence” is proven if there is (1) a duty owned to Plaintiff and (2) the Defendant breached that duty.



It takes too long to explain all elements of each cause of action, but from my knowledge, you have a lawsuit for the following causes of action: negligence.

Some elements of the causes of action different by state due to different evolution of local law, but they are generally nearly identical.


Furthermore, there is case right on point here: "We think the sound and practical rule is that liability in such cases is to be determined by the test of negligence and that a landowner should be held to the duty of common prudence in maintaining his property, including trees, in such a way as to prevent injury to his neighbor's property." The Court went on to state that "a healthy tree does not ordinarily fall of its own weight without some exterior force being directed against it. Though some evidence indicated that the tree looked sound, it was in fact full of decay. At least 13 years earlier it had been subjected to surgery and a large area filled with concrete."

In conclusion, the Court suggested that a land owner has a duty to periodically inspect the trees on his property or at least have them examined by an expert to determine whether they are safe to continue to stand. Dudley v Meadowbrook, 1961
In the end, the small claims court Judge decides whether or not the elements for each of the causes of action were satisfied, and if so, what damages are needed to rectify the situation. Note that if you win, you may also get your legal fees and attorney fees tagged unto the award.



Know, however, that 85% of such cases are resolved with a stern demand letter from your attorney and perhaps a draft petition included with it. That usually scared them to make a deal to avoid litigation. When you hire an attorney, try to hire them on a contingency basis, i.e. they don't get paid unless you do (usually about 33%, or 40% if reward is from trial). I can help you find an attorney in your area who specializes in these kinds of matters if you'd like.



Best of luck in your matter! I'm here if you need any more clarification or follow up info. I hope you found my answer helpful, and if so please click on the ACCEPT button for my answer. This is the only way for me to be paid for my work. Your question will not close, and you will still have the opportunity to follow-up if and I would be happy to answer any and all of the follow up questions.



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