“Tree law” fascinates us. I guess part of the reason is because many of us have at least one tree on our property, and during severe storms, we fear what would happen if one of those trees fell on our house, our neighbor’s house, or the street. Once the fear subsides, the next question we ask ourselves is “Who would pay if the tree fell on our neighbor’s property or vice versa and caused damage?” Or our neighbor’s tree may overhang our property or its roots may cause damage to our property, “What can we do then?” These issues are important considerations for property owners and community associations when reviewing their insurance policies.

The Virginia Supreme Court added to the small body of Virginia “tree law” cases. In this case, Cline v. Dunlora South, LLC, a man driving on a public road was struck and injured by a tree  that fell from private property. The man sued the property owner, claiming that the property owner’s “conduct constituted a nuisance because [its] lack of care, inspection, servicing, and/or maintenance of the subject property and tree was a condition that imperiled the safety of the public highway immediately adjacent to the property and tree, creating a danger and hazard to motorists and/or pedestrians.” The trial court dismissed the lawsuit, and on appeal the Virginia Supreme Court agreed that the property owner did not have “a duty to protect travelers on an adjoining public roadway from natural conditions on his or her land.” This blog post reviews that decision and what it means for us.

In its previous cases, the Virginia Supreme Court determined that a neighbor may have a nuisance claim if he suffered injury from “the protrusion of roots from a noxious tree or plant on the property of an adjoining landowner.” In such a case, “the owner of the tree or plant may be held responsible for harm caused to [the adjoining property], and may also be required to cut back the encroaching branches or roots.” Consequently, the Court placed “a limited duty on owners of adjoining residential lots to protect against actual or imminent injury to property caused by intruding branches and roots.”

In this case, the plaintiff sought to extend that duty. However, the Virginia Supreme Court noted that it has “has never recognized that principles of ordinary negligence apply to natural conditions on land.” Consequently, Virginia law “does not support a duty on the part of a landowner to inspect and cut down sickly trees that have the possibility of falling on a public roadway and inflicting injury.”

The court determined the duty of a landowner adjoining a public roadway was to “refrain from engaging in any act that makes the highway more dangerous than in a state of nature or in the state in which it has been left.” Because there were no allegations that the defendant had taken any action to interfere with the condition of the tree, it had not violated its duty.

The Court’s decision contains an extensive dissent that summarizes many possible approaches for analyzing injuries caused by trees falling from private land onto adjoining land or public road. Although the dissenting opinion has no persuasive weight, it does provide “tree law geeks” with a comprehensive summary of the law.

In the end, the case has a simple takeaway: so long as a landowner takes no affirmative action to make the highway more dangerous, the landowner would not be liable for injuries caused by tree falling on the highway and causing injury. Obviously more questions exist such as “What if my neighbor sends me a letter advising me that my tree is dead and could fall on his property, do I have any liability if it does? Will my insurance cover the damage if I was put on notice but took no action?” Stay tuned!

Tarley Robinson, PLC, Attorneys and Counsellors at Law – Williamsburg, Virginia

John Tarley

John is the firm's managing partner and chairs the firm's small business, zoning, and litigation practice areas.

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