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Mike Myers
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Falling Trees–When Should the Property Owner be Held Liable?

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Owning property with trees isn’t considered an ultra-hazardous activity in Washington. So liability is determined based on garden variety negligence principles.

Cases dealing with the liability of adjoining property owners for damages caused by falling trees are all over the board. The traditional rule from the Restatement (Second) of Torts is frequently used:

A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

In Albin v. National Bank, 60 Wn.2d 745, 375 P.2d 487 (1962), a windstorm knocked a tree across a county road killing the occupant of a passing car and injuring its driver. The road passed through a heavily wooded, but recently logged, mountainous area.

The Albin court approved the dismissal of the wrongful death action against the County. But the Albin court reached a different result with regard to the landowner.

It reasoned that because the landowner had altered the property from its natural state by logging it, there was a jury question as to his liability. In particular, Albin found it significant that the landowner had altered a natural condition that resulted in injury and it also recognized that the property was located in a rural setting.

Albin supports the proposition that a landowner may be liable if he has actual or constructive notice that an alteration to a natural condition creates a hazard to persons on adjacent property.

Albin is also consistent with the evolution of the law with regard to trees adjacent to other property. In general, the owner of land located in or adjacent to an urban or residential area has a duty of reasonable care to prevent defective trees from posing a hazard to others on the adjacent land.

It follows that a possessor or owner of urban or residential land who has actual or constructive knowledge of defective trees is under a duty to take corrective action for the protection of the plaintiff on adjacent land.

Actual or constructive notice of a ‘patent danger’ is an essential component of the duty of reasonable care. Absent such notice, the landowner is under no duty to ‘consistently and constantly’ check for defects.

Under Washington law, a person whose land is located in or adjacent to an urban or residential area and who has actual or constructive knowledge of defects affecting his trees has a duty to take corrective action.

Do you think that this is fair to the landowner? Do you think this is fair to people who may be injured by falling trees? Does the fact that most property owners have liability insurance affect how high the Court should set the landowner’s duty of care?