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"Fallen Trees After Hurricane Ike—Who Is Liable?"
Jennifer D. Hamer
Jones Walker E*Lert
November 5, 2008

Many homeowners in the Houston area received damage to their homes from fallen trees due to the winds from Hurricane Ike. If your tree fell on your neighbor's home during the hurricane, are you liable for the damages caused to their home? 

There is very little case law or statutory authority in Texas regarding liability for fallen trees during storms. Generally speaking (and as interpreted by most insurance companies), you are not liable for the damage your tree caused to your neighbor's property if the damage was the result of an "Act of God," meaning due directly or exclusively to natural causes without human intervention and which no amount of foresight or care reasonably exercised could have prevented. Mid-Continent Casualty Co. v. Whatley, No. 05-86-00814-CV (1987 Tex. App. LEXIS 9164). If your tree was healthy before the approach of Hurricane Ike, and if the high winds associated with the storm caused it to fall over and damage your neighbor's property, then you will likely not be held liable in a lawsuit for damages based on the Act of God defense. 

But what if you knew your tree was diseased, decayed, dead, or in an otherwise dangerous condition prior to the storm? In 1995, an appeals court in Dallas issued an opinion in a case involving a healthy 65-year-old tree where a huge limb fell onto a neighbor's chimney and roof during a severe storm with 90 mile-per-hour winds, causing substantial damage. Westergard v. Whatley, No. 05-93-00535CV (1995 Tex. App. LEXIS 3779). The court held that the tree owner was not liable for negligence, nuisance, or trespass, given the severity of the storm and that the subject tree appeared to be healthy, with no signs of disease or decay that would put anyone on notice that there was a problem. Id. at 8. Based on the reading of this case, one could conclude that the court may have decided in favor of the neighbor if the tree had shown signs of disease or decay and the tree owner failed to properly maintain the tree, whether by trimming the branches or by removing the tree altogether to prevent it from falling over.   

In most cases, your neighbor's homeowners insurance policy should cover any damages caused by the fallen tree to your neighbor’s property, less any deductible. However, if there is evidence of negligence, the neighbor's insurance company could pursue a suit against you to recover funds they are required to pay to your neighbor. To prevent future disputes, act reasonably in the care of your trees by trimming or removing dead limbs, and accurately document such care. If you have any concerns, contact a certified arborist to assess the state of your trees. If you notice a tree in your neighbor's yard in a dangerous condition, contact your neighbor about the situation in writing. Should your neighbors refuse to remove the dangerous tree, check with your city officials; some municipalities have ordinances or restrictions that require the removal of dangerous trees, including fines for property owners who fail to remove dangerous trees.   

Remember that these legal principles may change and vary widely in their application to specific factual circumstances. You should consult with counsel about your individual circumstances. For further information regarding these issues, contact Robert W. Scheffy, Jr.