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Tree Liability Concerns for Homeowners
By: Sam Hand, Jr., Associate Professor
FAMU Landscape Design Program
July 7, 2010

If you own a home on a lot with large mature trees, it would be wise to give some thought to the
health of your trees and whether they present any threat to persons or property which may result
in a liability risk to you. This includes threats not only on your own property, but also to
adjacent properties or public rights-of-way. To limit your personal liability, not only do you
need to keep your trees healthy, but you have a duty under the law to manage them so they do
not create or constitute a hazard to the public.

Traditionally, assigning liability for property damage or injuries caused by trees has depended on
whether or not the accident was considered the result of an “Act of God” or from an act of
“Negligence.” To avoid the charge of negligence, one must simply be reasonable. Simply
stated, when a tree fails and results in property damage, personal injury, or death, the law looks
to see if a reasonable person, acting with reasonable care, knew or should have known that a tree
on his or her property had visible, apparent, and patent signs of internal decay, disease, or
structural defect and could fall (or fail structurally). If so, then the landowner has a duty to
exercise reasonable care to protect the public from danger. A reasonable person is not charged,
however, with the knowledge or understanding of an expert trained in the inspection, care and
maintenance of trees. The only duty imposed upon the landowner is to act reasonably.

In other words, if the problem with the tree was not one a “Layman” could reasonably be
expected to be aware of, then the assumption was usually that the event was an “Act of God.”
However, if the tree had obvious and observable defects that the owner had ignored, or the
owner had done something to knowingly or carelessly render the tree unsafe, then liability could
be assigned based on the owner’s negligence. This has not changed. But now, due to recent
court rulings, the liability exposure of residential landowners with trees on the property has been
significantly clarified as to the conditions on private property that may protrude into the public
right-of-way, even though the trees may be quite sound and healthy.

For example, in the past, it was standard procedure for the owner of public streets, roads,
highways and utility easements to be the responsible party for maintaining proper tree and sight
clearances on the rights-of-way, including maintenance of interfering limbs originating from
trees on adjacent properties owned by private individuals. While that responsibility may
continue to exist depending on the circumstances, now, should one of your tree limbs be the
cause of damage to a vehicle or its passengers, as a result of protruding or falling into the public
right-of-way, you may well be held liable and responsible for failing to have acted reasonably in
the maintenance of your residential land.

So what do you do to protect yourself from a tree related liability claim? There are several basic
requirements that go beyond the two most common maintenance practices of watering and
fertilizing. They may include, but are not limited to:

• Having a “documented inspection program” of your trees designed to identify any
  structural problems of the crown, trunk or roots. The “inspection” requirement
  may be a simple “Drive By” or “Walk Through” observation of the property. If
  no compromised trees are noted, simply making a note of the time and date you
  checked on your trees may be sufficient for “documentation.” If, however,
  defective trees are noted or something looks suspicious, then a more thorough
  review should be performed by a qualified person and the results noted.
• Removing hazardous weak trees or limbs noted in your inspection, or if possible,
  correcting these deficiencies with appropriate structural remedies such as cabling.
• Pruning or removing limbs identified as diseased, dying, or dead to promote
  safety and the health of the tree. Weak limbs that can not be corrected by pruning
  or cabling should be removed.
• Pruning or removing interfering or objectionable limbs that fail to provide safe
  sight distances and adequate vehicular clearances, limbs which may constitute a
  threat to vehicles or persons on public rights-of -way adjacent to your property.

While most people can maintain and avoid damaging the observable portion of the tree above
ground, what about maintaining and protecting the hidden tree roots under the ground that you
can’t see, roots that keep the tree alive and anchor it structurally? Most trees in our Florida soils
have a root zone that extends outward two to three times the height of the tree, generally growing
in the top two feet of the soil (which is where the roots can find nutrients and oxygen).
Obviously a root zone this close to the surface is very susceptible to damage from many common
site improvements. Damage from construction operations such as homebuilding, installing
irrigation, trenching for utilities, site grading, and many other operations can all cause root
damage which may put your trees or trees on adjacent property at risk and make them unsafe.

So what should you do, or not do, in order to preserve and protect tree roots in a healthy and safe
manner?

• First, when planning site activities that could damage or destroy a tree’s roots,
  determine the tree’s “Critical Root Zone” and protect it with a fenced barricade.
  The City of Tallahassee’s Tree Protection Standards define this area as “one foot
  of radius, from the tree’s trunk, for each one inch of trunk diameter” (measured at
  four and one-half feet above the ground). This is the minimum “Critical” area as
  the more undisturbed root area you can protect, the better the chance of survival
  and structural anchoring.
• Avoid “Root Raking” as a site clearing procedure whenever possible. “Root
  Raking” is just that: raking, or ripping the tree’s roots out of the ground, often
  right up to the trunk of the tree causing major damage that can result in structural
  instability, decline, or death of the tree.
• Tunnel under the root zone rather than trenching through it. Even shallow
  trenches can cause major damage to large roots just under the surface, roots which
  provide structural support, water, and nutrients to the tree.
• Avoid chemical spills, including paints, solvents, and alkaline concrete tailing
  washed from cement mixers in the tree’s root zone.
• Monitor soil moisture levels. Remember though, too much water can force air out
  of the soil and can “drown” your tree.
• Mulching two to three inches on top of the affected root zone will help to retain
  soil moisture.
• Placing soil fill or pavement over root zones can also suffocate your trees’ roots
  by not allowing the soil to rid itself of excess carbon dioxide, a by-product of tree
  root respiration.
• Avoid soil compaction of the root zone. Storing fill dirt, vehicular driving and
  parking, heavy construction equipment, and the like can compact the soil to the
  extent that air and water may become unavailable to the roots for use by the tree.
  Even two or three trips with a loaded pickup truck can compact soil and crush
  roots to the point of causing root loss, tree decline, or even eventual death.

Finally, if the above suggestions seem beyond your ability to personally work out a solution to
keep your trees safe and healthy, your best advice is to call a professional “ISA” (International
Society of Arboriculture) “Certified Arborist” to develop a “Tree Management Plan” to assist
you in managing and maintaining your specimen trees. Your County Extension Forester is also a
good source for this type of information and assistance. Stan Rosenthal, our Leon County
Forester, may be reached at [850] 606-5202.

Remember, not only do properly maintained healthy trees add value and enjoyment to your life
and benefit the entire community, they may also keep you out of the lawyers’ food chain.

Sam Hand, Jr. is a “Registered Consulting Arborist” with the American Society of Consulting
Arborists and an International Society of Arboriculture “Certified Arborist” Mr. Hand is not an
attorney, and this article is not intended as legal advice. Should you have any questions about
your legal rights and responsibilities, you should contact a licensed attorney.

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