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PLAINTIFF WAS INJURED BY A FALLING TREE LIMB; THE CITY AND COUNTY, AS PART OWNERS OF THE TREE, CANNOT BE LIABLE BECAUSE THERE WERE NO VISIBLE SIGNS OF DECAY; THE PRIVATE PARTY WHOSE NEIGHBOR WAS INJURED BY THE FALLING LIMB, HOWEVER, MAY BE LIABLE BECAUSE HE WAS AWARE THE LIMB WAS WEAK (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined that the city and county defendants (part owners of the tree) could not be held liable for injuries caused by a falling tree limb because there were no visible signs of decay. The defendant property-owner, whose neighbor was struck by the limb, however, may be liable because he was aware the limb was weak:

Accepting for purposes of the respective motions that the City and the Land Bank are part owners of the tree, we note, and the parties do not otherwise suggest, that neither had actual notice of any potential danger posed by the tree, thus requiring that the contribution claim against both entities be established on a theory of constructive notice. To that end, “the concept of constructive notice with respect to liability for falling trees is that there is no duty to consistently and constantly check all trees for nonvisible decay. Rather, the manifestation of said decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm” … . Weaver v Metsker, 2024 NY Slip Op 05380, Third Dept 10-31-24

Practice Point: In order to demonstrate the county and city, part owners of a tree along with a private party, had constructive notice that a tree limb posed a danger of falling, there must have been some visible sign of decay.

Practice Point: Even if there are no visible signs of decay, a private party who owns a tree may be liable for a neighbor’s injury from a falling limb if he or she is aware the limb was “weak.”

 

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