Homeowner liable for actions of contractor?

[Lucy2]

NY State

Q.) Is neighbor liable for property damage caused by contractor removing tree debris through adjacent owner's land?

Scenario:

Neighbor fails to secure property line survey. Neighbor hires and directs tree service contractor to remove shrubs and vegetation, along with trees neighbor has identified and marked with a big red 'X'. Trees, shrubs and vegetation are cut and removed from adjacent property owner's land without permission. Contractor removes debris from both properties through adjacent owner's land without permission, causing additional damage in the process.

Neighbor's insurance Co. disclaims liability for damage to adjacent owner's property caused by contractors unauthorized trespass. Claim Representative: "As I advised you, our insured is not negligent, therefore not responsible, for any damages caused by the tree service's removal of tree debris over or through your land. Our insured did not direct nor control the removal of the debris. Any claim you have for these additional damages would have to be made against the tree service."

We disagree and hold the neighbor 100% liable for all damage to the property. With respect to liability under RPAPL §861, one can be held liable for the actions of an an independent contractor if "they directed the trespass or such trespass was necessary to complete the contract". While it is true, as contended by the neighbor's Ins. Co., that a party who retains an independent contractor has no liability for the negligent acts of such contractor (see, e.g., Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668), the record here amply justifies a finding that the neighbor was negligent in the manner in which they instructed the contractor to perform the work which, in turn, constitutes a well-recognized exception to the rule against the imposition of liability for the acts of an independent contractor (see, Kleeman v Rheingold, 81 NY2d 270, 274).

The exception applies, in our opinion, because the neighbor freely admitted walking the contractor to the site and personally pointing out the specific trees he previously marked for removal -including trees on our side of the line- and directed the contractor to do so. The record will reveal that the neighbor provided no evidence that he had probable cause to believe that it owned the property in question. Instead, he freely admits not knowing where the common lot line was, or obtaining a survey prior to identifying trees for removal to the contractor.

In light of the foregoing, we believe that it is immaterial whether the neighbor did or did not authorize, direct or control the removal of the debris by the tree service through our property and, despite Ins. Co assertions to the contrary, he is 100% liable for any and all damage to our property according to law.

Your opinions please? Thank you.What is the name of your state (only U.S. law)?

 

[You Are Guilty]

What are you hoping to achieve? The neighbor's insurance has already denied coverage and you are not going to change their mind absent a lawsuit. And if that is your goal, name both the tree service and the neighbor as defendants and your problem is solved. Why are you so against filing a claim with the tree people? I'm sure their adjusters are very used to such claims.

Incidentally, based merely on your facts, I'd say you have maybe a 50-50 shot of convincing the judge the tree service wasn't an IC. (Your chances would go up significantly if you were to file in small claims - they tend to overlook the law in favor of "equity" rather often).

 

[Lucy2]

Hello and thanks for your thoughts, care to take a stab at answering the question?

To add a few more details:

What are you hoping to achieve? The neighbor's insurance has already denied coverage and you are not going to change their mind absent a lawsuit. And if that is your goal, name both the tree service and the neighbor as defendants and your problem is solved. Why are you so against filing a claim with the tree people? I'm sure their adjusters are very used to such claims.

The neighbor's insurance has not denied coverage, they disclaim partial liability. The action is being prepared. The tree service did not carry liability or workers comp insurance.

Incidentally, based merely on your facts, I'd say you have maybe a 50-50 shot of convincing the judge the tree service wasn't an IC. (Your chances would go up significantly if you were to file in small claims - they tend to overlook the law in favor of "equity" rather often).

Why do you believe I want a judge to believe the tree service was -not- an independent contractor? I believe the tree service meets the definition of independent contractor contained here: http://www.irs.gov/pub/irs-pdf/p15a.pdf. The damage estimates and cost of restoration far exceed the Small Claims limit, even before trebling pursuant to NY RPAPL §861.

Again, thanks for your comments.

 

[latigo]

I’d say that you’ve pegged it squarely on the nose. By participating in and directing the contractor’s performance the neighbor’s immunity normally afforded by the principal/contractor relationship was waived.

The carrier’s “purported analysis” of its exposure under its policy with your neighbor is ridiculously flawed, and they know it to be so. But that is typical. They much prefer to spend their profits in enticing new customers than paying third party claims.

The question is when are you going to do something about it? Continue arguing with the homeowner’s insurance carrier with no leverage because you are not privy to the insurance contract and cannot sue the carrier? Or properly file against both the neighbor and his contractor?

If it becomes necessary to file the lawsuit, do so with the understanding that you cannot name as parties either of the defendant’s separate liability carriers or make any reference in the pleadings or during trial of the presence or absence of liability insurance. That is strictly verboten!

My guess is that when you do file the complaint and serve the defendants overtures of settlement will be arriving.

In the meantime start gathering your expert evidence as to the monetary damage to your landscaping and be prepared to prove that the damaged flora was truly within your property lines. The trial court will not permit speculation on either issue.

 

[Lucy2]

latigo-

Thank you for your comments. You will be interested to hear that we received an unsolicited letter admitting negligence and partial liability, along with a settlement offer, from the neighbor's insurance company. Of course, we find that unrealistic to restore our damaged property.

We have already hired a registered consulting arborist to provide us with the necessary cost of cure damage evaluation, town planning and zoning code enforcement officials (the damage occurred in an EPOD (Environmentally Protected Overlay District For Steep Slopes), plus NYS DEC and County Soil and Water District representatives to provide damage assessment and restoration recommendations. You asked "The question is when are you going to do something about it?". The answer is after all the supporting documentation and evidence is collected and, as you can see, we are well on our way.

I would like to clarify one of my earlier comments: the reason I said the contractor carried no insurance is because that is what he told an attorney on a speakerphone conversation with me present. In reality, it may be B.S., time will tell but I don't want to be accused of omitting material information down the road.

 

[latigo]

(Supplementing here.)

I overlooked mentioning an obvious theory of liability that is perhaps more fitting to the circumstances than the principal/contractor relationship.

And that would be the neighbor’s liability in tort for trespassing and causing the destruction of the flora. A trespass by the neighbor committed through the instrument of his contractor, whether it was an independent contractor relationship or that of employer/employee.
__________________

I’m reminded of an episode in the old “Amos and Andy” radio dramas.

The Harlem pseudo aristocrat “Kingfish” had hired “Andy” (a genuine non-aristocrat pool player) to disassemble the front porch of a home at 220 Elm Street.

The climax of the episode was reached when the owner of 220 Elm called the Kingfish to ask why somebody was tearing down her neighbor’s front porch at 222 Elm Street.

 

[Rexlan]

Thank you for your comments. You will be interested to hear that we received an unsolicited letter admitting negligence and partial liability, along with a settlement offer, from the neighbor's insurance company. Of course, we find that unrealistic to restore our damaged property.

So you came here to pull everyones chain to blow your own horn? Toot - Toot

Go Away

 

[Lucy2]

So you came here to pull everyones chain to blow your own horn? Toot - Toot

Go Away

Pull everyone's chain, like trying to fool everyone? Sorry, no idea why you felt the need to say that but if you have a question on topic, just ask it. I came to this Advice forum to ask for advice. Maybe get assurance we are on the right track with our thoughts and actions to date or, by the grace of someone more knowledgeable of law tahn ourselves, perhaps even acquire some legal info helpful to our situation. If you have the capacity to contribute that, great, please do. If not, or you don't like the thread for whatever reason, kindly dispense with the snarky remarks and have the courtesy to move along. Thanks and Merry Christmas!

 

[Rexlan]

If not, or you don't like the thread for whatever reason, kindly dispense with the snarky remarks and have the courtesy to move along. Thanks and Merry Christmas!

Exactly my thoughts ... go away ...LOL
Toot - Toot

 

[Lucy2]

Lol is right.

Whatever your motivation to threadcrap here is, I came here looking for productive dialog and have no intention of going away. latigo has offered helpful feedback and I'm hoping that an attorney knowledgeable in NY Timber Trespass Law will be kind enough to contribute as well. Again, if YOU don't have anything of substance on topic to contribute, kindly refrain from disrupting this thread any further. If you think I've done or said something inappropriate, call an Admin.

Keep on topic please.

 

[Lucy2]

(Supplementing here.)

I overlooked mentioning an obvious theory of liability that is perhaps more fitting to the circumstances than the principal/contractor relationship.

And that would be the neighbor’s liability in tort for trespassing and causing the destruction of the flora. A trespass by the neighbor committed through the instrument of his contractor, whether it was an independent contractor relationship or that of employer/employee.

Yes, that was exactly our thought, although I don't think there is any question that the tree service principal was acting as an independent contractor for purpose of the exclusion. Two follow up Questions: 1.) A bill for services was provided, however, does lack of a written contract factor in any way? ...and 2.) Neighbor is claiming contractor told him he could do the job "in the next week or two", but came back the very next day with his workers while the neighbors were at work. Do you see any triable facts in those issues that could trip us up? Thanks again.