If a Tree Falls and Causes Injury or Damage, Can the Owner of the Tree Be Found Liable?

Owners of Trees Hold a Legal Duty to Ensure That Trees Are Reasonably Maintained. If An Unreasonably Maintained Tree Fails and Causes Injury or Damage, Liability May Be Imposed Upon the Tree Owner.


Understanding the Duty of Care Owed to Persons Who May Be Harmed By Trees Including the Potential Liability Risks

Tree Liability Risk Involves a Duty of Care Owed to Those Who May Be Harmed By Trees Although trees are extensively found throughout our urban and rural landscape, the value and benefits of trees are often taken for granted. Additionally, the potential liability risks are often unappreciated or misperceived. Owners and contractors, among others, should carefully heed the potential liability risks arising from the ownership, care, or control, of trees.

The Law
Duty of Care

The basic principles of common law, particularly negligence and the legal test regarding duty of care as founded within the Donoghue v. Stevenson case (a general principles case rather than tree specific case), prescribe that property owners owe a duty to ensure that other persons and the property of others persons is reasonably safe. In Ontario, these duties are also codified the Occupier's Liability Act, R.S.O. 1990, c. O.2, whereas it is said:


3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Negligently Performed Maintenance

Generally, the owner of a tree, or other persons responsible for the care of a tree such as hired maintenance contractors, will be held liable for injury or damage caused by the tree only when it was known, or constructively known, that a tree failure risk was present and the owner, or other person, failed to take proper care of the tree. Accordingly, it should be viewed that the injury or damage resulted due to neglect in the care of the tree rather than as a result of inherent risks. Essentially, it is the man-made risk of negligent failure to maintain a tree rather than an inherently natural tree risk that is said to give rise to liability for injury or damage. On the point that liability arises for the negligent failure to maintain trees rather than being absolute so to include inherent risks, such concerns were addressed within the case of Hallok v. Toronto Hydro Electric System Ltd., 2003 CanLII 8519, wherein it was stated:


[14]  It would appear to be common ground that a property owner, such as Park Lawn, cannot be held responsible for damage resulting from a limb on a tree falling simply on the basis that the limb or tree fell.  If the evidence does not establish that there was knowledge on the part of the defendant, Park Lawn, of a dangerous condition of a tree or that there was a dangerous condition of which the defendant Park Lawn ought to have knowledge, a finding of negligence is unavailable as a matter of law.  (See: Culley v. Maguire, [1957] O.J. No. 52 (C.A.) at p. 1; Quinlan v. Gates, [2000] O.J. No. 5292(S.C.J.) at p. 2; Buttoni et al. v. Henderson et al., 21 O.R. 309 (H.C.J.) at p. 371; Doucette v. Parent, [1996] O.J. No. 3493 (Gen. Div.) at p. 4; Gasho v. Clinton (Town), [2001] O.J. No. 4505 (S.C.J. (Small Claims) at p. 4).

As such, it seems that knowledge, or constructive knowledge, of a dangerous condition is a requirement of liability for negligent maintenance of trees.  Note that "constructive knowledge" is knowledge which the law deems a person ought to have based on reasonableness.  If a reasonably diligent person would know of a dangerous condition this is "constructive knowledge" and proving actual knowledge becomes unnecessary.  Constructive knowledge is often much easier to prove than actual knowledge.  As an example, following a severe storm, a court may deem that reasonably acting property owners would inspect trees for broken branches among other dangerous conditions.  In this regard, it is important to note that intentionally avoiding the inspection of trees, among other things, and thereby choosing to remain ignorant of a dangerous condition may be deemed an act from which constructive knowledge is imposed.

Summary Comment

Tree owners, or other persons who are hired to provide the care and maintenance of trees on behalf of the owners, are prescribed by law with a duty of care to reasonably ensure that the trees are maintained in a safe condition.  If a person becomes injured or if property becomes damaged by a unreasonably maintained tree, liability may arise.

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