If a Tree Falls and Nobody Hears it…Do You Have a Lawsuit? UPDATED FOR HURRICANE FLORENCE
Hurricane season officially began on June 1. Around here, we have had a little bit of experience in the Hurricane department, so when we see the Weather Channel hanging around, we know to get to the store, stock up on bottled water, propane and Spam and hunker down for a good named storm. After it is over, everybody heads blinking into their yard checking out the damage and swapping tall tales of much bigger storms with their neighbors. The situation happens fairly frequently that a tree on one property has fallen and damaged a house or fence on another property, or sometimes caused someone personal injury. Who is responsible? First, most people have homeowner’s insurance and if your house or even your car gets hit with the neighbor’s formerly prized pecan tree, your insurance will usually pick up the tab. It may be a good idea as part of your hurricane season checklist to review your homeowner’s policy and check for what exactly your coverage is for trees and other things, and what amount of a deductible you will pay.
Second, forgetting about insurance, in North Carolina, your neighbor generally has no duty to pay your damage, even if it was his tree that hit your house. After all, he didn’t knock it down onto your property, it was an “Act of God,” and He is beyond the subpoena power of the North Carolina Courts. However, you may have a case against that neighbor in negligence if he knows that the tree is unhealthy or diseased or otherwise fails to maintain the tree.
Where there is negligence, there is usually a defense of contributory negligence. So if you asked your neighbor if you could remove the diseased tree and he agreed, but you failed to do so before the storm knocked it on your roof, the neighbor would have the defense of contributory negligence. Other jurisdictions have considered it contributory negligence for failing to prune a diseased limb that hung over your property line.
If there is a case against your neighbor, and you are covered by insurance, usually your insurance company will pay you and then may maintain an action against the neighbor to get their money back. If that happens, talk to the attorney for your insurance company. Sometimes you can ride his coattails and recover your deductible as well.
–Bradley A. Coxe is a practicing attorney in Wilmington, NC who
specializes in Personal Injury, Medical Malpractice, Contract and Real
Estate disputes and all forms of Civil Litigation. Please contact him
at (910) 772-1678.