April 27, 2023 by Tom Roberts, Esq.
My neighbor’s tree fell onto my property, who is responsible for the damage?
Answer: Probably not the neighbor’s – unless it was a protruding branch that fell.
HISTORY OF THE LAW ON THIS SUBJECT
Landowner duty stopped at the property line under common law.
History – Common Law – No Liability
Virginia however applies the broad common law maxim: “sic utere tuo ut alienum non laedas” — one must so use his own rights as not to infringe upon the rights of another.
But possible liability if the condition was a nuisance.
So in Smith v. Holt, 174 Va. 213, 219, 5 S.E.2d 492, 495 (1939), the Virginia Supreme Court determined that an adjoining landowner had a nuisance cause of action if a sensible injury was inflicted by the protrusion of roots or branches from a noxious tree or plant on the property of an adjoining landowner.
Fancher v. Fagella, 274 Va. 549, 650 S.E.2d 519 (2007) – The Virginia Rule
Liability for actual harm or the imminent danger of actual harm of intruding roots or branches.
In Fancher v. Fagella, the Virginia Supreme Court reexamined the issue of injury caused by the encroachment of vegetation onto adjoining property, and modified the “Virginia rule” expressed in Smith in two ways: (1) discarding the subjective requirement of “noxious” nature, and (2) imposing a limited duty on owners of adjoining residential lots to protect against actual or imminent injury to property caused by intruding branches and roots. 274 Va. at 555-56, 650 S.E.2d at 522.
But common law does not reach to dead or decaying trees that pose a risk of falling.
No duty or liability from allegedly dead or decaying tree falling from private land
The Virginia Supreme Court clarified Fancher v. Fagella, holding, A landowner does NOT owe a duty to protect travelers on an adjoining public roadway from natural conditions on his or her land.
Cline v. Dunlora S., LLC, 284 Va. 102, 113, 726 S.E.2d 14, 20 (2012)(Note – there were 3 dissenting judges)
Fancher v. Fagella, 274 Va. 549, 650 S.E.2d 519 (2007), establishes the rule in Virginia for these cases. Fancher v. Fagella concerned a dispute between two adjoining landowners, one of whom had a large sweet gum tree growing next to the property line whose growth caused damage to the retaining wall, home foundation, and drain pipes of his neighbor. The Virginia Supreme Court examined a variety of different liability regimes and subsequently adopted the “Hawaii approach” which states that “encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to [adjoining property].” Fancher v. Fagella, 274 Va. 549, 555, 650 S.E.2d 519 (2007).
While the Virginia Supreme Court is clear in Fancher v. Fagella on liability concerning plants and damage to adjacent property, it does not establish a rule which covers personal injury liability.
Cline v. Dunlora S., L.L.C., 81 Va. Cir. 235, 235-36 (Cir. Ct. 2010)
THE GENERAL INFORMATION ON THIS PAGE IS NOT LEGAL ADVICE.
The facts and circumstances of each case are unique and therefore the fact that a law firm has obtained significant verdicts and results in other cases in no way guarantees that other cases will have similar results.
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