Ask a Lawyer - Archive

A major wind storm hit our area (Indiana) in September causing widespread damage.

My neighbor who has land adjoining my property informed me last night 12/3/08, that a large oak tree on my property had been blown down onto his property damaging about 50 feet of his barbwire fence.

He stated he wants the tree removed and the fence repaired as he is going to put cattle out, that he has consulted his lawyer and the prosecutor to be assured that it is my responsibility, and that if I cannot do it (heart attack) that I need to hire someone to do it and my homeowners' insurance will cover it.

My insurance agent said it's an act of God and I'm not liable.

I'd like to know where I stand. Am I liable and is it my responsibility, if so, should my homeowners' cover insurance cover it and what would be a reasonable time frame to do the work?

The area is a somewhat rough terrain area of both properties, you can probably get some equipment back there, but with rain and snow season here the neighbor is also concerned with equipment leaving ruts in his fields.

What do I do?

Thank you for your help.

Your liability (whether you upheld your duty of care) will be based on the specific facts of your case. A major factor will be that the tree fell down during a windstorm. Proving that other trees and limbs fell down during the same storm would tend to show that you did not breach your duty. However, if the tree did not develop a full crown every year, outwardly displayed signs of disease, or if you had reason to know of a disease or problems with the root structure, you likely breached your duty of care and would be found liable. This is in spite of the fact that the tree fell during a windstorm because it would be foreseeable that the tree could fall reasonably soon. The disease would be the cause and the windstorm would only have accelerated the time in which the tree fell.

If you threw an object or let an object fall onto your neighbor's property with the intent to do so, you would be guilty of a trespass. However, you did not have the requisite intent to let your tree fall on your neighbor's fence, and thus, you will be judged by the duty of reasonable care.