Virginia Supreme Court, 4-3, decides about liability for trees falling

Got a call — “My neighbor’s tree fell on my house. Can I sue him?” My answer — “Maybe, but you probably won’t win.”

First, a caution — there are two recent Virginia Supreme Court cases that are relevant to the answer here. In one case, Fancher v. Fagella, 274 Va. 549, 555-56, 650 S.E.2d 519, 522 (2007), the Court had to deal with a situation where a neighbor’s roots were coming across the boundary and causing damage. The old Virginia rule, set out in Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (1939), had said that a landowner can sue his neighbor only if the plant that was sending its roots or branches across the boundary line was a “noxious” plant. The Court in Fancher couldn’t figure out whether a sweet gum tree with invading roots was “noxious,” and didn’t think that was a valid basis for decision.

Accordingly, we now overrule Smith v. Holt, insofar as it conditions a right of action upon the “noxious” nature of a plant that sends forth invading roots or branches into a neighbor’s property. We find the reasoning of the Tennessee court in Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 360–63 (Tenn.2002), persuasive, and adopt the Hawaii approach as expressed in that case:
Accordingly, we hold that encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to [adjoining property], and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. We do not, however, alter existing … law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property. Thus, the law of self-help remains intact….
Sounds like they’re heading in the direction to find liability, right?

The Virginia Supreme Court, in a 4-3 decision June 7, 2012, held that the only duty a property owner owes to other property owners is to not make things worse than the natural situation. This was an opinion in an Albemarle County case, where the allegation was that the folks who run the Dunlora subdivision were negligent because there was an obviously dead or dying tree that fell onto a public street, injuring someone driving on the street. The Court was asked to hold that a property owner has the duty to inspect its trees and to take action to remove a dead or dying or otherwise dangerous tree. The fallback position was that even if there was no duty to inspect, at least where it was obvious that the tree was dead or dying, you have a duty to remove the dangerous condition. The Supreme Court said “No” to both arguments, holding that the only situation where a property owner can be responsible to an adjoining property owner is if he has done something to make a situation worse than it would be if nature was taking its own course. The easiest example would be if I start to cut down a tree and stop because it is time to watch Law & Order reruns; before I get back out there, a storm has come up and blown the weakened tree onto my neighbor’s house. Under those facts, I could be liable. But that’s about the only way. If you want to read a lot of legal gobbledygook on the topic, look at Cline v. Dunlora South, LLC.

The Court regarded Cline v. Dunlora South, LLC as a refusal to extend the doctrine of Fancher to a personal injury situation. And certainly the easiest way to look at the two cases is to say, “Suing for property damage — OK. Suing for personal injury — not OK.” Personally, I think that the logic of Fancher follows to the dissent in Cline, but that position only commanded 3 of the 7 votes. So for now, the answer needs to be, “You lose, but if you want to pay me by the hour to take it on up, I’m willing to go for it. ” It is not inherently unethical to raise the issue.

Bottom line — there is a reason to have homeowner’s insurance — it protects you against “Acts of God,” which is what storms are called.