Image credit: CityLaw
Trees under the common law were considered natural conditions with the result that possessors of land were not liable for injuries caused trees. Professor William Prosser wrote in the first edition of the hornbook on Torts (1941) that the traditional common law rule was that the possessor of land was under no affirmative duty to make safe dangerous conditions on the land that were natural in origin. Prosser went on to say, however, that there “were indications of the development of a different rule as to urban land.” Today, after many developments in the law of negligence and nuisance, coupled with statutory enactments and changes in the law of immunity, there are significant liability risks to the City for injuries caused by trees.
The City has a duty of reasonable care with respect to its park and street trees. A person injured by a falling limb must allege that the City knew about the dangerous condition of the tree, or should have known, and failed to take reasonable steps to make the dangerous condition safe. Reasonable care would include taking reasonable steps to inspect the tree in order to identify dangerous conditions. If the defect or dangerous condition would have been revealed by a reasonable inspection, and was not, the City may be subject to liability for injuries caused by that dangerous condition. The Court of Appeals has held that the reasonableness of the inspection of the tree was itself a question for a jury. Harris v. Village of East Hills, 41 N.Y.2d 446 (1977).
In Harris, Walter Harris was driving along a county lane when a large branch from a maple tree crashed onto the top of his car, caved in the car’s roof and rendered him a quadriplegic. At trial it was established that the County of Nassau had police officers regularly observe trees from their car for potential hazards. The jury found that the county had not breached its duty to inspect, and the Court of Appeals affirmed, stating that inspecting the roadway from the patrol car was not unreasonable as a matter of law.
In another case, Alexis Handwerker, a 29-year-old social worker, was injured on July 16, 2007, when struck by a branch that fell from a large elm tree in Stuyvesant Square Park. Handwerker, who was sitting on a bench beneath the tree, was pinned to the ground and badly injured. Handwerker alleged that the City, had it taken reasonable steps to inspect the tree, would have known of the dangerous condition. To support her claim several witnesses submitted affidavits that described the tree trunk as “gooey.” Handwerker v. City of New York, Dkt. No. 112462/2007 (N.Y. Cty. Sup. Ct. Sept. 22, 2010). The City elected not to go to trial and settled Handwerker’s claim for $4 million dollars.
In yet another case, a 37-year-old Google engineer in 2009 on his way to work was struck in Central Park when a 100-pound limb fell from an oak tree. The blow fractured his skull, partially severed his spine and caused incomplete paraplegia. The City had in fact inspected the tree and discovered the dangerous condition, but had allegedly been negligent when it had failed to take reasonable steps to make the dangerous condition safe. A City arborist had inspected the tree and labeled the limb as dangerous condition 20 days prior to the accident. Under these unfavorable facts the City settled the claim for $11.5 million.
Department of Parks and Recreation
The Department of Parks and Recreation’s tree pruning program plays a vital role in stemming injuries, claims and ultimately settlements that the City pays out. Parks is responsible for all of the trees in the parks and the 680,000 street trees along the City’s streets and avenues. In 2016, the Parks Department, with the help of more than 2,300 volunteers, counted and mapped every street tree in New York City. Parks now boasts an up-to-date database of the street trees under its jurisdiction. The data includes each tree’s trunk diameter, species, ecological benefits, and a link to GoogleMaps streetview. The survey did not, however, count trees in parks or those planted along highways which are under the jurisdiction of the City Department of Transportation.
In fiscal year 2010, the City slashed funding for tree pruning and maintenance. Claims for injuries caused by trees increased by 92 percent during the period of reduced pruning and maintenance, and in some community districts in the outer boroughs claims increased by 590 percent. ClaimStat, Office of the NYC Comptroller 12–14 (Oct. 2015).
Trees generally need to be pruned every ten years to prevent dangerous conditions. During fiscal year 2010 the City pruned fewer than 30,000 street trees—50,000 fewer trees than the previous year. The City restored full funding to Parks’ pruning program in fiscal year 2013 and reengaged in the ten-year pruning cycle. In fiscal year 2016 Parks pruned over 87,000 street trees. Mayor’s Management Report: Department of Parks and Recreation, Office of the Mayor 125 (2017).
Tree roots creating tripping hazards
A landowner generally has no duty to protect or warn against a tree root that is open and obvious condition, inherent or incidental to the nature of the property, and which could be reasonably anticipated by those using it. Dottavio v. Aspen Knolls Estates Home Owners Association, 147 A.D.3d 910 (2nd Dep’t 2017).
Liability becomes more of an issue when a tree root causes sidewalks and streets to become uneven and unsafe. As a general rule a landowner has no affirmative duty to keep public sidewalks in front their properties safe or passable. The duty to maintain public sidewalks lies with the government generally and the City specifically in the five boroughs. A municipal ordinance, however, may expressly impose a duty on the landowner to maintain the sidewalk or curb adjoining the land. In 2003 the City Council enacted such a law—section 7-210 of the Administrative Code—which transferred tort liability from the City to adjoining property owners. The law exempted from liability one-, two- and three-family residential properties that are in whole or in part owner-occupied and used exclusively for residential purposes. In those situations, the City remains liable for injuries caused by defective sidewalks.
A problem might occur if a city-owned street tree caused the public sidewalk to become uneven. Would the adjoining property owner still be liable for the dangerous condition? The answer appears to be “Yes.” It is still the adjoining landowner who is responsible for injuries. Landowners cannot hide behind the City’s inaction concerning street tree roots to shield them from liability since it was the legislation’s intent to shift liability for sidewalk accidents away from the City. Seplow v. Solil Management Corp., 841 N.Y.S.2d 823 (N.Y. Cty. Sup. Ct. 2007).
Tree wells located in public sidewalks remain the responsibility of the City. The law that shifted liability to abutting landowners for sidewalk defects did not include liability for defects in tree wells. Vucetovic v. Epsom downs, Inc., 10 N.Y.3d 517 (2008). The location of the defect determines whether the City or the abutting landowner will be liable. If the person tripped on a defect in the tree well – the City is liable. If the person tripped on a defect in the adjacent sidewalk the abutting landowner is liable.
In a recent appellate division case a woman lost her balance and fell after stepping into a sidewalk tree well in Queens. The court dismissed the case against the adjacent landowner because the woman failed to point to any defect in the sidewalk that was a cause of her injury. Donadio v. City of New York, 126 A.D.3d 851, 852 (2nd Dep’t 2015).
An adjoining landowner may still be held liable for injuries caused by a tree well if the adjoining landowner created the defect or unsafe condition, or used the tree well for a special purpose such as installing a fence or varying the tree well’s construction. If an adjoining landowner, for example, added a metal grate to the tree well which left a gap between the tree well and the sidewalk, the landowner risks liability for failing to maintain and repair the grate. Kleckner v. Meushar, 34th Street, LLC, 80 A.D.3d 478 (1st Dep’t 2011).
The prior notice law applies with respect to City tree wells. The courts will not impose liability on the City for ordinary defects in tree well unless the City had prior written notice. Amabile v. City of Buffalo, 93 N.Y.2d 471 (1999); Tucker v. City of New York, 84 A.D.3d 640 (1st Dep’t 2011).
Trees obstructing traffic
The City has a duty to maintain its roads in a reasonably safe condition and that duty includes the trimming of trees to assure visibility. Liability does not apply automatically; the City must have had actual or constructive notice of the dangerous condition. DiSanto v. Town of Islip, 212 A.D.2d 500 (2nd Dep’t 1995).
Reasonable care requires the City to trim roadway trees that become hazardous. This requirement became the central issues in the case where Joan Nichols-Sisson was struck by a vehicle while driving through an intersection. The other driver could not see the stop sign because it was obscured by a tree that was planted by the adjacent landowner in the roadside right-of-way between the sidewalk and the curb. The court ruled that the landowner was not liable because it had relied on and followed plans approved by the City, and the tree was not a hazard when it was planted. But the court found that a trial was necessary to resolve the issues concerning the City’s inspections of the location and actions taken to make the intersection safe. Nichols-Sisson v. Windstar Airport Service, Inc., 99 A.D.3d 770 (2nd Dep’t 2012).
In 2015, Peter Poveromo, in a similar case, was injured at an intersection adjacent to a large evergreen tree growing on private property that allegedly obscured the view of other motorists entering the intersection. Poveromo alleged that the Town of Cortlandt was negligent in allowing the dangerous condition to exist. The court dismissed the complaint for lack of prior notice or the obstructed sight lines. Poveromo v. Town of Cortlandt, 127 A.D.3d 835 (2nd Dep’t 2015).
Driving into roadside trees
Trees and shrubbery in close proximity to a roadway otherwise adequate do not create an unreasonable danger where travel beyond the paved portion is neither contemplated nor foreseeable. Hay v. State of New York, 60 A.D.3d 1190 (3rd Dep’t 2009) (driver swerved to avoid deer and hit tree stump three feet from roadway surface). The City’s duty to maintain safe roads only extended to conditions beyond the lanes and shoulders when a prior accident or other event would give notice of a specific danger. In Soto v. City of New York, 63 A.D.3d 1035 (2nd Dep’t 2009), Herman Soto was driving his car on Highland Boulevard in Highland Park, Brooklyn. To avoid an oncoming car Soto swerved and collided with a tree that was located four and a half feet from the roadway. There were guardrails on that portion of the road, but the tree was located between the road and the guardrail. Soto argued that the guardrails were defectively installed because they would not prevent a car from striking the tree. The court found that the guardrails were designed to prevent entry into the park, not to prevent collisions with trees. The existence of trees so close to the roadway “did not give rise to a condition so inherently dangerous as to necessitate the erection of guardrails or the removal of trees.” Id. at 1037. The case was dismissed as a matter of law.
Many street trees intersect with overhead telephone and power lines. The lines literally thread their way through the branches. There is no New York case that has specifically addressed the question of liability for power lines strung through trees, though there are some holdings which sketch out the likelihood that a utility company would be held liable. Utilities have an affirmative duty to exercise reasonable care in the operation and maintenance of powers line. This degree of precaution required is a function of the danger to the public coming into contact with the power lines. Therefore when higher voltages are transported there will be “a correspondingly higher duty of care owed.” Miner v. Long Is. Light. Co., 40 N.Y.2d 372, 379 (1976).
There is no duty of cable and phone line owners to trim a tree so that a child could not climb it and reach another entity’s high voltage line. In 1978, seven-year-old James Holden climbed a poplar tree in the backyard of a neighbor’s house and came in contact with a power line. The 2400 volt line caused serious injury to his left hand. The electric lines, owned by the village municipal commission, were at the top of the 35-foot pole. Below the electric lines, also running through the tree, was a phone line and a cable TV line. The court held that the telephone company and cable company had “reasonably discharged their duty without trimming the tree” because the two lines did not pose a risk of harm and therefore there was no duty to protect tree climbers, be they children or not. While the companies had a right to trim the trees growing along the path of their wires, “it would be illogical to transform that right, which is appurtenant to the easement, into a duty to trim branches from trees for the protection of young climbers to whom there is no foreseeable risk.” Holden v. Boyle, 80 A.D.2d 281 (4th Dep’t 1981).
The court may find a utility company liable where a utility fails to exercise reasonable care in maintaining its power lines. In one case a child received an electric shock from the utility’s power line while climbing a tree on town property. The child inadvertently touched the 7200 volt wire and fell 25 feet to the ground. The child’s parents sued both the utility and the town arguing that the town had invited the child to climb the tree by not trimming the lowest branches and that the utility had not properly insulated the power line. The Supreme Court dismissed the claim against the town, stating that “the court declines to impose upon the Town a duty to render all the trees within its care impossible to climb.” The Supreme Court, however, refused to dismiss the case against the utility company because there was a question of fact as to whether the line was properly insulated. Trapani by Trapani v. Rochester Gas and Elec. Corp., 146 Misc.2d 483 (Monroe Cty. Sup. Ct. 1995), aff’d 229 A.D.2d 923 (4th Dep’t 1996).
By: Jonathon Sizemore (Jonathon is the CityLaw Fellow and a New York Law School Graduate, Class of 2016).