July 5, 2011
Traditionally, a premises owner was generally not liable to persons outside the premises for harm caused by natural conditions. Under Restatement (Second) of Torts ["Restatement (Second)"] § 363, liability was limited to situations in which the premises owner's tree injured a person who was using a public highway in an urban area. However, the trend in recent years has been to expand the scope of the owner's liability. Under § 54(b)(1) of the Restatement (Third) of Torts, a possessor of commercial land owes a general duty of reasonable care to protect persons and property off the premises. In addition, § 54(b)(2) provides that a possessor of noncommercial land has a duty of reasonable care only if the possessor knows of the risk or if the risk is obvious.
In a recent decision, the New Hampshire Supreme Court expanded an owner's liability beyond the limited traditional rule but stopped short of adopting the rule of § 54(b)(2). In Pesaturo v. Kinne, 161 N.H. 550, 2011 WL 723138 (2011), the plaintiff alleged that two of the defendant's trees overhung her property. One tree limited the use of her driveway, while the other tree damaged her fence. She brought nuisance and negligence claims, which were dismissed by the trial court.
On appeal, the Pesaturo court followed precedent and affirmed dismissal of the nuisance claim because the defendant had not contributed to the existence of the tree. Cf. Restatement (Second) § 840 (failure to abate harmful natural condition of land). However, the court recognized that a premises owner's duty in negligence may extend beyond the borders of his or her property. The court adopted the reasoning of a New Hampshire federal court, which had held that owners and occupiers of land owe a duty of reasonable care under all the circumstances in the maintenance and operation of their property. See Grant v. Wakeda Campground, 631 F. Supp. 2d 120, 124 (D.N.H. 2009). The Pesaturo court noted that other jurisdictions have held that a landowner who knows that a tree on his or her property is decayed or defective has a duty to eliminate that danger. Although such cases have involved trees that actually fell, the court stated that this is not a requirement for negligence liability.
The plaintiff's amended complaint alleged that the defendant's pine tree had caused harm in two ways: (1) because of insufficient management and the effect of rain, wind, ice, and snow, limbs had broken off and damaged her fence; and (2) the root system had extended onto her property and caused her to trip. She also alleged that the defendant's oak tree had swinging, dead limbs that hung over her driveway and prevented her from using it. In deciding whether the premises owner could be held liable, the court considered "whether the social importance of protecting the plaintiff's interest outweighs the importance of immunizing the defendant from extended liability." 2011 WL 723138, at *3. The court ruled that the premises owner's duty would arise only with respect to trees that are known to be decayed or defective, but it did not restrict liability to its traditional scope of highways in urban areas. The court stated:
[W]e are persuaded that because there is a foreseeable risk of injury when a tree is decayed or defective, a landowner who knows or should know that his tree is decayed or defective has a duty to maintain the tree to eliminate this dangerous condition. Thus, we hold that a landowner who knows or should know that his tree is decayed or defective and fails to maintain the tree reasonably is liable for injuries proximately caused by the tree, even when the harm occurs outside of his property lines. See Ivancic v. Olmstead, 66 N.Y.2d 349, 497 N.Y.S.2d 326, 488 N.E.2d 72, 73 (1985), cert. denied, 476 U.S. 1117, 106 S.Ct. 1975, 90 L.Ed.2d 658 (1986); Kellner, 145 N.H. at 200, 761 A.2d 421. However, a landowner does not have a duty to "consistently and constantly check all trees for nonvisible decay." Ivancic, 497 N.Y.S.2d 326, 488 N.E.2d at 73. "Rather, the manifestation of [the tree's] decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm." Id. at 73, 74.
Id. at *4.
Turning to the plaintiff's allegations, the court ruled that there was no liability with respect to the pine tree, because the plaintiff had not alleged that it was decayed or defective. On the other hand, there was potential liability for the oak tree because the plaintiff had alleged that the owner knew of its swinging, dead limbs. The court raised, but did not address, an interesting issue with respect to self-help, stating that "we express no opinion on the issue of whether the availability to the plaintiff of a self‑help remedy, i.e., cutting down the offending overhanging tree branches herself, would defeat the plaintiff's negligence cause of action or constitute a defense to the same." Id. at *5.
The Pesaturo case is one of many decisions that have addressed the issue of liability for injuries caused by trees. See generally Thomas R. Trenkner, Annotation, Liability of Governmental Unit for Injuries or Damage Resulting from Tree or Limb Falling onto Highway from Abutting Land, 95 A.L.R.3d 778 (1979 & Westlaw database updated weekly); F.S. Tinio, Annotation, Rights and Liabilities of Adjoining Landowners as to Trees, Shrubbery, or Similar Plants Growing on Boundary Line, 26 A.L.R.3d 1372 (1969 & Westlaw database updated weekly); M.C. Dransfield, Annotation, Liability for Injury or Damage by Tree or Limb Overhanging Street or Highway, 54 A.L.R.2d 1195 (1957 & Westlaw database updated weekly).