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Dear Dale: A large branch from a tree in my neighbor's yard recently fell on my car in my driveway. My neighbor said he spoke to his insurance agent, who told him that he wasn't responsible for covering the damage to my car. This is frustrating because my neighbor has told me in the past that he needed to remove the tree because some of the branches were dead and have been falling in my yard regularly. I don't have comprehensive insurance on my car, so do I have to pay for this myself?

ANSWER: Don't give up too fast on this one. It looks like you've got some ammo you can use to fight the insurance company.

A few factors come into play when analyzing these types of cases. One is whether we're talking about an urban or rural setting; another is whether the tree or branch fell near a public road or highway, and a third is whether the owner of the tree knew or should have known about the tree's defects.

In rural settings, courts have deemed it to be too much of a burden to require a property owner to inspect trees to determine if there might be a problem that could cause injury to a person or property. In theory, we could be talking about property owners who have forests on their land. Judges reason that requiring a rural landowner to correct problems with trees would be disproportionate to the risk of the harm actually occurring.

In urban settings, and I'd include suburbs in that definition, the equation changes when you're talking about the duty to inspect, especially near a public road or highway. The rationale is that it's generally not that great a burden for urban dwellers to pay attention to parcels of land that likely are a lot smaller than those found in rural areas. If the tree is near a public road or highway in an urban area, the risk of danger from a damaged or dying tree increases significantly because there's likely to be much more traffic.

Finally, and perhaps most importantly, is the issue of whether the landowner had actual or constructive knowledge about a defect within a tree that could cause it or a limb to fall. Even in a rural area where there's no duty to inspect, a landowner who knew of a problem with a tree near a public highway and failed to correct it could be held responsible for damage caused by a falling tree or limb.

So, let's put some of those rough rules into play for your situation. I found a case from our Toledo-based court of appeals, which covers much of northwest Ohio, that held that urban landowners must take reasonable steps to cure defects in trees even if they aren't along a public road. Therefore, the fact that the branch fell in your driveway or backyard shouldn't work against you.

More significant, though, is that your neighbor made comments that he knew the tree in his yard had dying branches that had been falling and that he failed to either remove the tree or have the dead branches trimmed. To show negligence, you must show the defendant owed a duty of care. It appears your neighbor owed a duty of care because he had actual knowledge that his dying tree was dropping branches. He failed to take the reasonable steps to cure the defect within the tree, so you have a good argument that he should be held responsible.

Your neighbor's insurance company might argue that a landowner is not responsible for harm caused by a natural condition on the land such as a tree. An example might help here. In one case I found, a tree from Neighbor A's land fell on Neighbor B's land during a storm. In that case, the court held that Neighbor A had no knowledge that there was a problem with the tree or that it was in such a condition that it could fall during a storm, so Neighbor A wasn't responsible for the damage to Neighbor B's property.

Your case is different because your neighbor knew of the problem with your tree. I'd recommend talking to your neighbor about the situation again, now that you're armed with more information. I'm guessing your neighbor wants his insurance company to cover the costs of repairing your car so he can keep a good relationship with you. If he has a deductible, maybe you can offer to split it so he has more incentive to push his insurance company to pay up. If you can't get your neighbor or his insurer to move, though, you'll have to decide whether it's worth the time and money to pursue the matter in court.

Dale Emch practices law at the Charles E. Boyk Law Offices, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers' questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers should send their questions to Mr. Emch at demch@charlesboyk-law.com or Dale Emch, 405 Madison Ave., Suite 1200, Toledo, OH 43604.

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