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Falling Tree Limbs and Who is Responsible

Written by
Abraham Jaros
Updated on Wednesday, Oct 18, 2023

I think that I shall never see A poem lovely as a tree.
A tree whose hungry mouth is prest Against the sweet earth’s flowing breast;
A tree that looks at God all day, And lifts her leafy arms to pray;
A tree that may in summer wear A nest of robins in her hair;
Upon whose bosom snow has lain; Who intimately lives with rain.
Poems are made by fools like me, But only God can make a tree.

- Joyce Kilmer. 1886-1918

Everyone loves trees however, when a tree is over-mature or diseased there is a real danger that the tree or a branch of the tree will fall and strike a person or automobile on a city street or country road lined with trees, or a house. Unfortunately, these occurrences are not infrequent.

In a case entitled, Harris v. East Hills, 41 N.Y.2d 446, 393 N.Y.S.2d 691 (1977), the highest court in New York, the New York Court of Appeals, made it clear that a village has a statutory duty to maintain and inspect trees on village properties which border country roads. In addition, the County has a duty to maintain its roads in a reasonably safe condition and this duty extends to trees which overhang roads. If a village fails to conduct any inspections whatsoever under the theory of "hear no evil, see no evil," takes the ostrich approach, has no program of tree inspections, and only examines a tree when a homeowner requests it, the village can be held liable.

As the court found in Harris, the longstanding adverse condition of the tree and the failure of the village to conduct any inspections whatsoever permitted the jury to find that the village had been negligent. In the Harris case a tree limb fell along a street on Long Island, striking the roof of plaintiff’s car, causing plaintiff to be rendered a quadriplegic. In that case the tree was on a village-owned property overhanging a country road.

In the case of Hillier v. Town of Greenburgh, 301 A.D.2d 572, 754 N.Y.S.2d 29 (2d Dept. 2003), decided some twenty-five years after Harris, the Appellate Division Second Department found that since the Town had no program to inspect trees and an inspection would have revealed that the tree could fall because it was diseased and its condition had lasted for several years, the Town of Greenburgh could be held liable.

Similarly, in the case of McMahon v. Village of Old Westbury, 35 Misc. 3d (1213(A), 901 N.Y.S.2d 907 (Supreme Court, Nassau County, 2009)), a large tree limb came crashing through the windshield of Mr. McMahon’s truck, causing him serious injuries. In that case, despite a court order to preserve the tree, the village destroyed the tree after the accident and the court indicated the village would be appropriately sanctioned.

Older trees are more prone to have falling branches than younger, more virile trees. When trees are decayed or otherwise diseased, they are more prone to fall. Any hole or cavity in a tree should be inspected for decay. Where a branch has fallen and caused someone serious injuries, it is important to immediately take pictures of the tree and attempt to preserve the branch(es) which fell. If possible, one should also seek to obtain a court order directing the town, village or county, or whatever entity owns the tree, to preserve the tree and branch(es) as this would be destroying the evidence.

Your attorney should promptly hire an arborist - a professional with a degree in the practice of cultivation, management, and study of trees, to establish the condition of the tree, taking proper tests and samples before the tree is cut down or the branch(es) disappear.

The injuries that can be caused by a falling tree or limb can be quite serious. In Harris, Mr. Harris was rendered a quadriplegic. In McMahon, Mr. McMahon’s injuries required him to undergo a series of surgeries; and in Healy, the husband was killed and the wife suffered serious injuries.

Although as Joyce Kilmer said one hundred years ago there is "no poem lovely as a tree," that applies only to trees that are not hazardous.

At Jaroslawicz & Jaros we were successful in bringing an action for a man that was injured by a tree branch that fell from a park onto the sidewalk and caused very serious injuries to his legs. We were able to show that the tree and its branches were diseased and that it should have been cut down before they fell. We were able to show that it was an accident waiting to happen.

If you or a loved one has been injured by a falling tree or branch and are in need of legal assistance, contact Jaroslawicz & Jaros. In many cases, especially against a County, City or other governmental entity a lawsuit must be filed before an applicable expiration date, known as a statute of limitations which at times can be as little as 90 days from the date of the accident.

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