Brian P. Heermance and Nicole M. Witteck ()
While the beauty of trees is generally well appreciated, their existence often results in injuries that raise questions regarding the legal responsibility of those who own them, or the surrounding area.
New York City. The New York State Court of Appeals has determined that tree wells within city sidewalks are the city’s sole responsibility because they protect the tree and are not intended for pedestrian use.1 In Vucetovic v. Epsom Downs, the plaintiff tripped and fell when he stepped into a tree well on the sidewalk. In analyzing the statutory definition of “sidewalk” to determine whether a tree well is considered part of the sidewalk, the First Department held that, “[n]either trees or tree wells are ‘intended for the use of pedestrians,’ and therefore they are not part of the sidewalk.”2 Accordingly, since tree wells are not part of the sidewalk, abutting landowners are under no obligation to maintain or repair these areas.
However, abutting property owners can be held liable if they create a defective condition in or around the tree well, or use it for a special purpose by altering its construction.3 For instance, the city was not liable for a defect created by a missing concrete block lining the tree well because the abutting property owner created and installed the bricks around the well.4
Similarly, a court denied an abutting property owner summary judgment where the plaintiff caught his foot in a gap between a metal grate within the tree well and the sidewalk.5 Even though plaintiff fell within the tree well, the court found that the abutting property owner needed to establish that he did not create, negligently repair, or cause a defect around the tree well by installing the metal grate.6
Outside New York City. The general rule of law is that, absent a statutory requirement, an abutting landowner has no duty to maintain tree wells within a municipal sidewalk. To avoid liability, abutting landowners must establish that: (1) they did not violate a statute or ordinance requiring them to maintain the tree well, (2) they did not create the condition, and (3) they did not cause the condition to occur because of special use.7 If these elements are proven, the municipality alone will bear responsibility.
Several municipalities throughout Long Island have followed New York City’s example and implemented statutes transferring responsibility for sidewalk maintenance to abutting landowners. Similar to New York, these codes do not require that the abutter maintain tree wells within the municipal sidewalk.
Code Section 205-2 of the Town of Oyster Bay, for example, imposes a duty on landowners to maintain the sidewalk abutting their properties in good and safe repair and free from obstructions, but this duty does not extend to tree wells.8 In Holmes v. Town of Oyster Bay, the plaintiff tripped and fell over a tree stump in a tree well located in a utility strip. The plaintiff sued the landowner (a corporate business) and the Town of Oyster Bay. The landowner proved that it did not have a duty to maintain the area pursuant to §205-2 by establishing that it did not create a dangerous condition, and did not repair or make special use of the area in question. In addition, the town was dismissed on summary judgment because the plaintiff could not prove that the town had prior written notice of the condition pursuant to the town’s Code §160-1.
Similarly, the Town Code of Farmingdale §81-3.1 imposes a duty upon landowners to repair and maintain the village sidewalks, but this duty does not extend to trees or tree wells pursuant to §144 of the Vehicle and Traffic Law.9 “Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous or defective conditions to public sidewalks is placed on the municipality and not the abutting landowner.”10
In Morelli v. Starbucks, from the Second Department, the plaintiff tripped and fell over defective brick work within a tree well in the city of Rye. The landowners established that they were under no statutory obligation to maintain the tree well, did not create the condition, and did not make special use of the area. Therefore, when first assessing potential liability, one should always look to all applicable statutes and codes of the municipality.
Overgrown Tree Roots
New York City. While the city has a duty to maintain the tree and tree well area, defects caused by overgrown tree roots have been found to be the responsibility of the abutting landowner.11 In Falco v. Jennings Hall, the trial court (Supreme Court, Kings County) analyzed the intention of the city’s 2003 Sidewalk Law by noting that the purpose of its enactment was to shift liability away from the city and require landowners to keep abutting sidewalks in good repair. Based on the 2003 Sidewalk Law, the city assumes no duty in planting a tree, and does not acquire such duty when the tree’s roots cause the sidewalk to break or become uneven.12
The Supreme Court, Kings County, in DiGregorio v. City of New Yorkreinforced the ruling in Falco stating, “[w]hile it’s the city’s primary obligation to maintain the trees, if a tree creates a dangerous condition on a property owner’s sidewalk, the property owner can’t hide behind the city’s possible negligence to shield its own negligence.”13
Pursuant to §18-129(a) of the city’s Administrative Code, the property owner has the right to seek a permit from the city to cut, remove, or correct any sidewalk defects caused by a tree. Both the Falco and DiGregorio courts distinguished between injuries from defects on the actual sidewalk (property owners’ responsibility) and injuries from tree wells abutting the sidewalk (city’s responsibility).
The courts have narrowly construed the obligations of the city regarding maintenance and repair of sidewalks. As we have seen, even if the city chooses to plant a tree, the courts have failed to hold the city liable for trees that have overgrown and caused damage to the sidewalk. The city’s liability rests within the cultivation of the tree, including the soil. For example, in Acosta v. City of New York, the city was found liable for not maintaining the soil in the tree well, which was not level to the height of the sidewalk.14
Outside New York City. Unlike New York City, an abutting property owner is generally not liable for municipal sidewalk defects caused by tree roots.15 In Romano v. Leger, from the Second Department, when a plaintiff tripped and fell on the sidewalk caused by overgrown tree roots, the landowner was not liable because it was established that the landowner did not breach a statutory duty to maintain the sidewalk, did not create the condition, and made no special use of the sidewalk.16 Of course, if a town has an ordinance creating such a duty, liability may attach. It is, therefore, always prudent to check.
The seminal case in New York, Ivancic v. Olmstead, held that, unless there is actual or constructive knowledge of the defective condition of a tree, a landowner or municipality is not liable if it falls outside the premises.17 In Ivancic, overhanging limbs from a neighbor’s tree fell and struck the plaintiff, causing serious injuries. The Court of Appeals evaluated the concept of constructive notice with respect to liability for falling trees.18 It found that there is no duty to consistently and constantly check all trees for non-visible decay. Rather, the manifestation of said decay must be readily observable to require a landowner to take reasonable steps to prevent harm.
The principle relied upon in Ivancic has been consistently applied throughout New York State. The imposition of liability will differ depending on the individual ordinances governing a particular city, town, or village. Nevertheless, the burden of proof regarding knowledge generally remains the same.
While the primary responsibility for trees belongs to the owner of the land upon which the tree stands, pursuant to New York’s Highway Law §102(14), the county superintendent of highways has a role in overseeing maintenance of the trees within the county’s highway right of way. It is essential to take into account the respective duties of the county versus villages or towns.
In Harris v. Village of E. Hills, the Village of East Hills in Nassau County appealed from a jury verdict (which found the village liable for a falling tree limb) on the basis that the tree was located on county property.19 Although the tree was located on a county road, it was not on the county’s right of way. Accordingly, the Court of Appeals held that the village had a non-delegable, statutory duty to maintain and inspect trees on village property which adjoined county roads.20 However, the court also found that the county had a “collateral duty” because the tree limb extended over the county road.21 While both entities were subject to liability, their duties differed.
Based on the plaintiff’s expert, the Harris court stated that the tree’s decay would have been observable during an ordinary inspection.22 The court additionally indicated that the visible decay was on the back side of the tree facing away from the road. The village was denied summary judgment because the village failed to inspect the tree or have a program of tree inspection in place. The court stated that these facts alone could enable a jury to find the village liable since the tree sat on village property. On the other hand, the county supervised the area in question with patrol vehicles. After a Nassau County police officer, who had patrolled the area in question, testified that he did not observe any signs of decay, the court held that the county had no constructive notice since the decay was not visible from the road.
In Machicado v. Paradise, when a large oak tree fell over into a public road and onto a vehicle killing the driver, the driver’s widow sued the property owner and the town.23 The property owner moved for summary judgment asserting no actual or constructive notice of the defect, while the town moved for summary judgment on the grounds that the tree was located “outside its right of way.” The Second Department found that “the duty of a municipality to maintain its roadways in a reasonably safe condition extends to trees that are adjacent to the roadway and which could reasonably be expected to pose a danger to travelers.”24 The plaintiff provided evidence that months before the tree fell, there were visible signs of decay, establishing a question of fact regarding whether there was constructive or actual notice.
Experts are integral in proving or disproving actual or constructive notice because they can identify the condition of a tree and particular defects not known to ordinary people, which can make or break a case. For instance, in Sleezer v. Zap, the landowner was relieved from liability after she demonstrated that the defect was not easily observable to an ordinary person.25 In Sleezer, a branch from a tree on the landowners’ property fell and injured the plaintiff. An expert arborist testified that the hazardous defect was a result of the structure of the tree based on the weight and angle of the tree branch. Unlike the visible signs of decay, this type of defect is not apparent to an ordinary person and the landowner could not be held liable.
In cases where trees located just outside the landowner’s property line revealed obvious defects, a landowner would not necessarily be liable for injuries sustained on their property. The scope of a landowner’s duty is measured by the foreseeability of harm or injury. In Christopher v. Traditi, a Third Department case,when a noticeably rotten tree on adjacent land fell onto the landowner’s property and injured plaintiff, the landowner was not held liable.26 The court declined to hold the landowner liable because it would “improperly impose a duty,” since the tree was located several feet from the landowners’ property line.27
Brian P. Heermance is a partner and Nicole M. Witteck is an associate in the New York office of Morrison Mahoney.
1. Vucetovic v. Epsom Downs, 10 N.Y.3d 517 (N.Y. 2008).
2. Vucetovic v. Epsom Downs, 45 A.D.3d 28, (1st Dept. 2007), affirmed New York Court of Appeals, 10 N.Y.3d 517 (June 3, 2008).
3. Skinner v. City of New York, 2010 N.Y.Slip Op. 31068[U] (April 27, 2010).
4. Callan v. City of New York, 17 Misc.3d 248, (Sup. Ct. Kings Co. 2007).
5. Kleckner v. Meushar 34th Street, 80 A.D.3d 478 (1st Dept. 2011).
7. Simmons v. Guthrie, 304 A.D.2d 879 (2d Dept. 2003).
8. Holmes v. Town of Oyster Bay, 82 A.D.3d 1047 (2d Dept. 2011).
9. Hartofil v. McCourt & Trudden Funeral Home, 57 A.D.3d 943 (2d Dept. 2008).
10. Morelli v. Starbucks, 107 A.D.3d 963 (2d Dept. 2013).
11. Falco v. Jennings Hall Senior Citizen Housing Development Fund, 19 Misc.3d 1107(A), (Sup. Ct. Kings Co. 2008).
12. Seplow v. Solil Mgt. Corp., 15 Misc.3d 1138(A) (Sup. Ct. New York Co. 2007).
13. DiGregorio v. City of New York, 19 Misc.3d 1135(A), (Sup. Ct. Kings Co. 2008).
14. Acosta v. City of New York, 24 AD3d 291 (1st Dept. 2005).
15. Romano v. Leger, 72 A.D.3d 1059 (2d Dept. 2010).
17. Ivancic v. Olmstead, 66 N.Y.2d 349 (N.Y. 1985).
19. Harris v. Village of E. Hills, 41 N.Y.2d 446 (N.Y. 1977).
20. Nassau County Administrative Code, §12-4.2; Village Law, §84. (Section 12-4.2 of the Nassau County Administrative Code provides in pertinent part: “a. Except in cities and in villages of the first and second class all trees, hedges and shrubbery between the property lines on county roads as defined in the title shall be under the jurisdiction of the [county] department of public works.”). Section 84 of the Village Law, in effect at the time of the occurrence, provided that “The street commissioner in villages of the first and second class, under the direction and supervision of the board of trustees has supervision and charge of the shade trees in the streets and highways of such villages, including state highways and county roads therein.”
21. Harris, 41 N.Y.2d at 449.
23. Machicado v. Paradise, 2013 NY Slip Op 08232 (Dec. 11, 2013).
25. Sleezer v. Zap, 90 A.D.3d 1121 (3d Dept. 2011).
26. Christopher v. Traditi, 178 A.D.2d 807 (3rd Dept. 1991).