By Michael O’Brien and Stephen Hanemann

Hurricane Gustav recently wreaked havoc and felled trees throughout the heavily wooded areas of Southeast Louisiana.  As such, many property owners may be concerned who bears the responsibility for a fallen tree. Obviously, if a tree in a homeowner’s yard falls on his house, then that homeowner should contact his insurance agent for assistance in repairing the tree damage. The remainder of this article addresses the issue of tree-owner responsibility when a tree located on the property of one person (the “tree owner”) falls on the property of his neighbor (the “property owner”) damaging the house, car, fence or other property.

A tree owner is not responsible for the damage caused by trees felled by the winds of Hurricane Gustav unless the neighboring property owner can establish that the tree fell because of its poor condition that the tree owner knew or should have known existed.  In the overwhelming majority of the cases involving trees felled by hurricane force winds, the neighboring property owner will have to make a claim against his homeowners insurance policy and not the tree owner. However, Louisiana law indicates that the tree owner is generally responsible for removing his felled tree from the neighboring property.

Louisiana Civil Code article 2317.1 states:  The owner or custodian of the thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. 

Thus, to establish liability for damage caused by a defective thing (ie—a fallen tree), the property owner must demonstrate that the tree owner should have known, in the exercise of reasonable care, of the defective tree that caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that the tree owner failed to exercise such reasonable care. Caples v. USSA Ins. Co., 806 So.2d 148, 150 (La. App. 1 Cir. 2001).

In Hoerner v. Beulah Title, 968 So.2d 217 (La. App. 4 Cir. 2007), the Louisiana Fourth Circuit addressed damage caused to one homeowner’s property by the trees of another. The Hoerner’s yard was damaged by trees in the yard of their neighbor, Ms. Title. The Hoerners filed suit alleging that the Ms. Title was liable under Louisiana Civil Code article 2317.1. Ms. Title, argued in her defense that the trees were not defective. She also argued that she was entitled to the defense of force majeure because the trees were felled by Hurricane Katrina.

The Hoerners testified that they had problems with Ms. Title’s pine trees and her foliage since 1991. However, there were no allegations that the trees in question were defective through disease or otherwise. Indeed, photographic evidence demonstrated that the trunks of the trees were blown over by Hurricane Katrina. There was no independent evidence that the trees fell due to the lack of maintenance or improper trimming. Nevertheless, the Hoerners argued that the trees were defective because they were neglected, overgrown, and placed too close to their backyard brick wall.

In support of their argument, the Hoerners argued that Brown v. Williams, 850 So 2d 1116 (La. App. 2 Cir. 2003) applied. In Brown, the tree which caused the damage had not been maintained in over 25 years. The branches had not been pruned, and the health of the tree had never been assessed. The Brown defendants were ultimately found liable because they should have known of the trees’ defective condition, and, in the exercise of reasonable care, the Brown defendants could have prevented the damage caused by their tree with ordinary maintenance.  However, as the Hoerner tree did not involve a total lack of maintenance and/or disease, Brown did not apply. As such, the Hoerners’s claims were dismissed. Moreover, the Fourth Circuit held that Ms. Title was entitled to the defense of force majeure because the winds of Hurricane Katrina caused trees to fall and damage property regardless of maintenance and/or location. 

Responsibility of removing a fallen tree from one’s own or one’s neighbor’s property rests squarely upon the issue of ownership of the tree. The owner of the ground out of which a tree grows is legally presumed to also own that tree. La. C.C. art. 491 (West 2008). This maxim holds true unless the owner of the ground has been divested of ownership of the tree and there is evidentiary support of separate ownership. Allen v. Simon, 888 So.2d 1140, 1144 (La. App. 3rd Cir. 2004). The Simon Court held that the obligation to remove one’s property off one’s neighbor’s property has long been recognized by Louisiana law.

The Simon case involved claims by a neighbor for reimbursement of tree-removal expenses against the neighboring tree owner. The tree owner asserted the Act of God defense, the common law equivalent to the Louisiana civil law doctrine of force majeure, declining liability for the tree removal because it was felled by an unforeseen force of nature, or other irresistible force. The appellate court overruled the trial judge’s application of the Act of God defense and found that the defendant’s decision not to remove the tree was not caused by any act of God. The court concluded that the Act of God defense did not relieve the defendant from his responsibility to remove his fallen tree from his neighbor’s property. Although an Act of God or force majeure may have caused the tree to fall, it did not serve to divest the tree owner of his ownership of the tree. Hence, responsibility to remove a fallen tree from neighboring property rests with the owner of the tree.