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The Sky is Falling!

September 18th, 2011 Comments off

It’s been a memorable August on Long Island punctuated by two rare natural disasters – an earthquake and a hurricane. The earthquake did little more that shake our buildings and our nerves. But Hurricane Irene’s unleashed fury caused billions of dollars in property damage. Yesterday’s Newsday headline pronounced that the LIPA bill to restore power would exceed $100 Million. Surely we’ll all pick up a piece of that unwelcome tab; but what about the individual costs that many people incurred. Power outages caused basements to flood, freezers to defrost and young children to go through video-game withdrawal.

The storm was the cause for disaster but its proxies were the trees which downed our power lines. Some were uprooted and others lost limbs. But whether they were killed or merely became amputees, their kamikaze missions claimed thousands of victims.

An Irish client of mine was knocked to the ground by a large falling tree limb. He sustained minor injuries but was saved from being serious hurt when the fence he walked beside deflected the brunt of the blow. When a witness told him that he was lucky the fence was there, he retorted with typical Gaelic sarcasm that if was really lucky he would have been walking on the other side of the street.

Thankfully, most of the casualties were inanimate, but the associated financial pain was acute nonetheless.

So after you’ve paid for the damage to your car, roof or fence, do you have any recourse against the owner of the tree? The answer is . . . maybe. Property owners owe a duty of care to neighbors and passersby to keep their properties free from dangerous conditions. However, the owner is not responsible in the event an “act of God” causes the tree to fall. Irene was a bad storm, but bad storms are expected events. God wil lnot take the blame if your obviously rotted tree falls in a rainstorm because you didn’t bother to cut it down.

The owner’s duty of care is only triggered when he knows about the dangerous condition (actual notice) or should know about it (constructive notice). The law is different for municipalities such as towns and cities which are only liable if they receive prior written notice that the tree presents a hazard. Even then, they are exempt unless the aggrieved party serves written notice of his intention to sue within ninety days after the accident. (See §50 (e) of the Municipal Law of the State of New York). Municipalities are otherwise exempt from liability by governmental immunity, a hangover from feudal times when being a peasant was never pleasant.

Next: What to Do if You’ve Been Damaged

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