Liability for tree that demolished car

State of Delaware.

Posting for a third party:

A tree fell on his car & totalled it. The tree was on the property next to his (may belong to the state because it was growing on the strip between the sidewalk & street). Of course he only has liability insurance, so who does he go to for reimbursement--the homeowner next door, the state, or is he out of luck?

Any help would be greatly appreciated.

[I AM ALWAYS LIABLE]

Originally posted by jlw1000
State of Delaware.

Posting for a third party:

A tree fell on his car & totalled it. The tree was on the property next to his (may belong to the state because it was growing on the strip between the sidewalk & street). Of course he only has liability insurance, so who does he go to for reimbursement--the homeowner next door, the state, or is he out of luck?

Any help would be greatly appreciated.

My response:

Is there a known reason for the tree having fallen ?

Please tell us your County name also, as this might be a Municipal Code situation insofar as responsibility for trees in parkways is concerned.

Here in Los Angeles, for example, while the parkway and trees belong to the County of Los Angeles, the responsibility for the parkway maintenance; e.g., mowing, and for the reporting of dead or dangerous trees, falls on the shoulders of the homeowner - - and that's due to a Municipal Code of Los Angeles.

IAAL

The tree was old and the wind blew it down.

The tree is located in New Castle County, the town of Townsend.

[I AM ALWAYS LIABLE]

Originally posted by jlw1000
The tree was old and the wind blew it down.

The tree is located in New Castle County, the town of Townsend.

My response:

Okay, from your description, there is no liability on any Governmental entity, or on the homeowner. What happened to your friend is commonly referred to as an "Act of God" - - and, such acts do not rise to the level of liability.

Unless there was obvious root rot, thus placing the homeowner and/or the County on actual or constructive "Notice", any claims made by your friend will be rejected - - both by the Governmental entity and, more than probably, by the courts.

This is just one of those unforeseen natural quirks, or burps, in life where "Comprehensive" insurance coverage would have covered this malady. But, unfortunately, your friend didn't have that coverage and, will now, bear the full expense of his damages.

Sometimes, crap happens in life - - and no one can be blamed or made responsible.

IAAL

My friend did not tell me about this until a week after the fact. The local government has already cleared away the tree. I went to look at the site, the whole tree did not collapse. Big branches fell off the tree. The wind was not that strong on the day this occurred.

Usually the local government is responsible for the trimming of the branches on said tree. Does this make them liable in any way, or is my friend still out of luck?

[I AM ALWAYS LIABLE]

My response:

Los Angeles is the same way; i.e., the County hires tree trimmers or has their own department (commonly known as "Street Tree" department) because the average homeowner doesn't have the necessary equipment to trim trees.

But, your friend's situation remains the same. You really need to understand the legal term, "Notice". Don't just brush over that term. Without actual or constructive "Notice" on the part of the Governmental entity and / or the homeowner, there just isn't any liability.

For example, a person has constructive notice of a particular fact if he or she has notice of circumstances sufficient to put a prudent person on inquiry as to that fact and, by prosecuting the inquiry, he or she might have learned of the fact. A person has notice of a fact when:
(1). He or she has actual knowledge of it;
(2). He or she has received a notice or notification of it; or
(3). From all the facts and circumstances known to him or her at the time in question, he or she has reason to know that it exists.

A public entity has actual notice of a dangerous condition if it has actual knowledge of the existence of the condition and knew or should have known of its dangerous character. A public entity has constructive notice of a dangerous condition only if the plaintiff establishes that the condition existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

However, if there were no "indicators" of a tree in "distress", there would be no "Notice", and there just isn't any liability.

And, to make matters worse, the evidence has been eliminated, and done so for purposes of public safety - - which comes first. Your friend needed pictures and an opinion from an expert arborist prior to the tree clearing to give an opinion whether there was at least "constructive notice" that the tree was rotted, or was in danger of falling due to some other reason concerning the condition of the tree itself.

Without that opinion or proof, your friend has nothing, and will not be able to prevail. Sorry.

On the other hand, there's an old saying: "The squeeky wheel gets the grease." That is, even though the odds are stacked against your friend; e.g., the evidence is all but gone, unless he tries in Small Claims court against the homeowner, he is assured to get nothing.

While I feel that your friend will not, or cannot, prevail due to the matter is an Act of God, he may as well try. It doesn't cost that much to file in Small Claims court against the homeowner and, who knows, a miracle could happen. It's doubtful at best, but at the very least, your friend will get a small lesson in legal reasoning and knowledge of the applicable law from the judge.

He may as well give it a go. He's got nothing else to lose by doing so.

IAAL

Thanks for all of your help.