Law Matters

A Tree Has Fallen and it Can’t Get Up

Florida summers bring rain and lots of wind. Trees are often the victims of high winds and falling trees can cause damage. Who has liability for damage caused by landscape items is a question often asked by Floridians. Let’s take a look.

An often-cited Florida case is Gallo v. Heller. Gretchen Gallo sued David and Beverly Heller in a dispute involving trees growing on Heller’s property. Gretchen claimed branches and roots of the Heller’s Ficus and Melaleuca trees damaged her roof and house, caused her cement walkway to crack, caused her pet Afghan hound to contract a severe allergy from dropping leaves and shaded Gretchen’s property killing her vegetation. Gretchen wanted an injunction to force tree removal and damages.

Gretchen lost. The court explained the rule at common law and the majority rule in the United States is that a possessor of land is not liable to people outside the land for a nuisance resulting from trees and natural vegetation growing on the land. That meant the Hellers were not liable for the damages claimed by Gretchen.

What could Gretchen do? A property owner can trim back, at the owner's expense, any encroaching landscaping including branches and roots to the property line. The court explained the underlying rationale as “it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property any reasonable way, than to subject that other to the annoyance and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.” 

If Gretchen cut back the offending trees to her property line, the Hellers might find the trees killed by that action and want to sue Gretchen. In 2018, Florida’s First District Court of Appeal addressed that very issue in the case of Balzer v. Ryan and Maxwell. The Balzer property had a large pine tree with roots extending into Ryan’s property, damaging the sewer line that ran under her driveway. To fix the sewer line and driveway, the driveway had to be removed and replaced. Ryan hired Maxwell to do the work.

While removing the driveway, Maxwell cut some of the tree roots. That did not kill the tree but undermined the tree's root structure and increased the risk that the tree might fall on Balzer’s house. Balzer sued for the cost of removing the tree.

Balzer lost. The court explained it is well established Florida law that an owner of a healthy tree is not liable to an adjoining property owner for damage caused by encroaching tree branches or roots. The adjoining property owner is privileged to cut back the roots, even if that kills the tree. Ryan had an undisputed right to cut and the court explained a rule imposing liability for damage to the tree under those circumstances would effectively eviscerate that right.

There you have it. No liability to the owner of property with a healthy tree even if the tree damages a neighbor. But what about an unhealthy tree?

There does not appear to be any Florida appellate case directly addressing damage from an unhealthy tree, but all of the cases insulating the property owner from damage caused by trees emphasize the trees at issue were healthy. Commentators glean from those decisions that an owner of property with a dead tree is not so protected. Damage caused by a dead tree (or an unhealthy tree) would likely be governed by general rules of negligence. If the property owner is negligent in allowing a dead or diseased tree to remain and that tree causes damage, the property owner is likely liable. Damage by such a tree would almost be guaranteed to establish negligence.

Even landscaping maintained in healthy condition does not always insulate a property owner from liability. What is known as the “agrarian rule” provides that a landowner owes no duty to persons not on the landowner’s property and therefore the landowner is not responsible for harm to those off-site caused by natural conditions on the owner’s land. But that rule is not absolute in Florida.

In the 2018 case of Whitt v. Silverman, Florida’s Supreme Court explained that Florida courts would not strictly apply the “agrarian rule.” Instead, courts would examine the facts to determine if a property owner's landscaping created a foreseeable zone of risk. 

In Whitt, pedestrians sued a landowner operating a service station alleging foliage on the landowner’s property obstructed departing motorist’s view, causing a driver to hit the pedestrians on adjacent property. All of the foliage was on the property owner’s site and there was no allegation it was dead or diseased.

The Court decided that conditions on a landowner’s property resulting in injury or damage to a plaintiff off of the landowner’s property should be evaluated by the established principles of negligence law. The landowner created a foreseeable zone of risk posing a general threat of harm to patrons of the landowner’s business as well as pedestrians and motorists using the abutting streets and sidewalks. The landowner in Whitt was not insulated by the health or natural condition of the landscaping.

The Whitt case involved commercial property and personal injury. Those two factors may have led the court to its ultimate conclusion, but it reached that conclusion without limiting the decision to commercial property or personal injury. It may indicate the zone of risk analysis will ultimately extend to residential property and healthy trees under similar circumstances. If so, where and how landscaping is planted should be considered by all property owners. Even though Florida tree cases so far insulate the owner of property with the tree, that may change. 

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.