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Tree damaged due to disease, is there a liability risk from neighbors
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<Staci Atwood>
posted
My boss has a tree that is dying from a disease, and the neighbors are threatening a lawsuit if something happens to their trees because of this. What is his legal responsibility in this case?
 
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<James Causton>
posted
Reply to post by Staci Atwood, on June 14, 2002 at 10:14:50:

I am an arborist, not a lawyer, but I would suspect that if your boss is aware of the fact that he has a disease problem which could spread to the neighbors property, he could be held liable for something similar to "chemical trespass". From my meager understanding of the situation, your boss has a responsibility to contain within his own property anything which may be harmful/unacceptable to his neighbors.
Lew Bloch, who is both an arborist and a prominent lawyer in this field, as well as a frequent visitor to this forum, will probably reply to your post more authoritatively. I suspect he may well shoot my remarks out of the water!!!!
Very interesting question. I look forward to other folks replies on this.

James.
 
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<Guy>
posted
Reply to post by James Causton, on June 14, 2002 at 10:14:50:

James, I'm not a lawyer but to me a nuisance in the legal sense is the responsibility of the tree manager. That which could harm neighboring property must be dealt with, or it would be culpable neglect.

"Unacceptable" to neighbors has no legal meaning. Some of my neighbors think my natural landscape is unacceptable to them, but the wildlife doesn't so I don't care. If I harbor oak wilt or pine beetles that threaten their trees, that's another story. If my dead tree could kill someone on their property when it falls, that's a huge story.

The bigger question is the responsibility of the property manager to maintain their clents' assets. Apartments rent faster for more money if there are live trees than if there are dead trees, right? The technical developments in tree care are constant.

Any property management company that promises good service should "embrace the discipline" of arboriculture. Get qualified people to manage those trees so they continue as assets, delivering value, and don't become potential liabilities.

Wouldn't renters rather see trees in their Skylines?
 
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<Russ Carlson>
posted
Reply to post by Staci Atwood, on June 14, 2002 at 10:14:50:

Staci, I have a different opinion to offer here. First, since this is a legal issue, I suggest that the tree owner consult a qualified lawyer for a better answer. There may be local ordinance or regulation that we are unaware of.

I don't think your boss would necessarily be held responsible for a naturally occurring situation such as an insect or disease. The neighbor's trees could be easily infected from other sources than your boss' trees, and there would be no way to prove the source.

If the problem is causing a dangerous situation such that the tree poses a physical risk to the neighbor's propery, that could be a different story. If the tree owner knows of the risk and does nothing, there could be serious repercussions based on negligence. There is a general duty to protect others from hazards associated with your property.

Again, I suggest a call to a good local lawyer. As arborists, we know the trees, but we can't counsel on matters of law.
 
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<Scott>
posted
Reply to post by Russ Carlson, on June 14, 2002 at 10:14:50:

Russ's key point about getting qualified legal advice is good advice.

I happened to be looking at some CT statutes yesterday (a compiliation for arborists and foresters) and noticed that a specific statute makes "gypsy moth" a public nuisance.

So from state to state there may be similar laws or regulations that may create a duty to abate the nuisance. Of course, Russ makes another good point. If populations are high enough to be a problem it would be hard to demonstrate in many situations that you are causing a specific nusicance to your neighbor... as compare to many other potential sources.

But the point is all pests my not be the same under the law in terms of your duty to do something about them. So there you are back at the beginning, talk to a lawyer.
 
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<Lew Bloch>
posted
Reply to post by James Causton, on June 14, 2002 at 10:14:50:

JAMES, JAMES, JAMES, This is Lew Bloch checking in, and not only am I not prominent, I am not a lawyer. Therefore, even though I do throw in whereas's and furthermore's and alleges's, I am a mere arborist like the rest of you guys (and gals).

As to spreading of disease, I doubt whether this ladies boss has any duty, but if the tree is dead or dying and poses a threat to the neighbor, then he would have a duty to protect the neighbor. This opinion is not based on law, only common sense, and we all know that common sense is not always compatible with law.

Thanks for the "kind" words, James.

Lew
 
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<James Causton>
posted
Reply to post by Lew bloch, on June 14, 2002 at 23:37:00:

At least I was right about being wrong!! ,

James
 
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<Scott>
posted
Reply to post by Lew bloch, on June 14, 2002 at 23:37:00:

LEW, LEW, LEW. To your great credit you are not a lawyer. But some might argue you are prominent. How about that recent article in TCI? You are becoming a household name.
 
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<lewbloch>
posted
Reply to post by James Causton, on June 18, 2002 at 18:27:07:

Keep up the good work, James!

lew
 
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<lewbloch>
posted
Reply to post by Scott, on June 18, 2002 at 18:27:07:

Scott, Scott, Scott. Thanks for the kindly words. In what kind of households were you referring to??? [Smile]

Keep up the good work!!!

lew
 
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<Reed>
posted
Reply to post by Staci Atwood, on June 14, 2002 at 10:14:50:

Staci,
What's relevent depends on both the state and municipality you're refering to.

Some areas impose regs and some don't irregardless of the accuracy or precision of these laws, new science may implicate further or admonish prior understandings, making said laws (or lack of) non-enforceable.

If the disease is a vascular parasite of plant or viral nature, a bacterium, or an insect there's interpretation that controls (cultural or chemical) cannot be a reliable administration of effect. In other words, nothing he does not do or anything he does do will impact the potential hosts further on. It boils down to what quality of legal help either party empowers, again, irregardless of imposed codes.

If your bosses' neighbors hire legal help for retribution, he'll have to do likewise and at that point I suggest he locate expert witness firepower. Look towards disease epidemiologists, not disease pathologists.

By the way, do you happen to know what's affecting said tree?
 
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