A Healthy Tree Can Impose an Unreasonable Risk

By: Carol Dillon
BleekeDillonCrandall

A healthy tree can impose an unreasonable risk of harm to a neighboring landowner depending on its size and where it is planted.

The Indiana Court of Appeals recently reiterated and further explained a landowner’s duty to neighbors regarding potential injury or property damage from trees. Landowners have a duty to protect their neighbors from property damage or injury from trees on their property, whether the trees are healthy or unhealthy. Specifically, in Scheckel v. NLI, Inc., dated August 9, 2011, a landowner was responsible for $2,500 of damage to the neighboring landowner’s sidewalk and fence because the tree roots from a tree on the landowner’s property had obstructed both items. Even though the tree was healthy and the landowner had no reason to believe otherwise, the Indiana Court of Appeals held that the landowner should have known based on the location of the tree, and its size, that it might cause property damage. Under the Restatement (Second) of Torts, typically the natural condition rule exempts landowners from liability for injury or property damage arising out of the natural condition of the land. However, a historical exception to that rule is unhealthy or dead trees. The Indiana Court of Appeals found that there is no difference between a healthy tree and an unhealthy tree and both should be exceptions to the natural condition rule.

Litigation Attorneys & Risk Management

By: Jeb Crandall
BleekeDillonCrandall

As litigation attorneys, we tend to focus on what to do after a lawsuit has been initiated. Who do we need to interview? What records do we need? Who should we depose? We don’t always remember that most of our clients would prefer NOT to be in litigation in the first place! So, as litigation attorneys, how can we advise our clients on risk management issues based on our experiences during litigation? Consider documents produced in discovery. Could certain damaging documents have been protected had different procedures been followed during the initial internal investigation? Does an “at-will” employment state affect what documents can (or should) be placed in a terminated employee’s file? When you come across these kinds of issues in the midst of litigation and discovery, don’t hesitate to contact your client to discuss how they can adjust their procedures to protect themselves going forward. While it may not help the current case, it lets your client know that you are looking out for their best interest across the board. As they say, “An ounce of prevention…”