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)?
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)?