ASH TREE AND TREE LIABILITY IN OHIO
By: Lee R. Schroeder
October 11, 2011
Tree Liability in General
Tree owners are responsible for damage caused by their trees only if the tree owner is negligent. Shoemaker v. Harris (1998), Second Dist. No. 98-CA-61, 1998 Ohio App. LEXIS 6066, at ** 5-6. The three (3) components of negligence are: duty, breach, and damages.
Once a tree owner has actual knowledge of a weakened tree, that tree owner has a duty to protect that weakened tree from damaging neighboring properties and/or neighboring roadways. Hay v. Norwalk Lodge No. 730, B. P. O. E. (1951), 92 Ohio App. 14, 23. Conversely, if a tree is not in a weakened or damaged condition, the tree owner is not liable for damages—to neighboring properties and/or neighboring roadways. Shoemaker.
Additionally, once a tree owner has constructive notice (essentially: awareness implied by law) of a weakened tree, that tree owner also has a duty to protect that tree from damage to neighboring properties and/or neighboring roadways. Hay. In Ohio, whether the law imposes constructive notice of a weakened tree on a tree owner depends upon where the tree is located. Heckert v. Patrick (1984), 15 Ohio St.3d 402, 405.
Trees in Urban Areas
Owners of trees in urban areas have a duty to inspect their trees regularly and are charged with notice of weakened trees, regardless of whether the urban tree owner carries out the required inspections. Heckert. A tree owner in an urban area is treated as though that owner has actual knowledge of everything that an actual inspection of the tree would provide. Heckert. Conversely and correspondingly, if an inspection of a tree does not give and/or would not have given the urban tree owner knowledge of the tree’s weakened state, the urban tree owner is not liable for damages caused by the tree falling on neighboring property or on a roadway. Shoemaker.
Trees in Rural Areas
In rural areas, the standard of care for the tree owner is slightly lower. Heckert. Rural landowners are not responsible for regular inspections of their trees. Heckert.
Although a rural tree owner is not required to regularly inspect each of the rural tree owner’s trees, if the tree’s danger is “apparent, which a person can see with his own eyes” (probably in passing), then the rural landowner is also charged with liability if the weakened tree causes damage by falling on a neighbor’s property or on a roadway. Hay.
Thus, as a practical matter, if a tree owner in a rural area can visibly see from anywhere outside the owner’s property that a tree is decayed or otherwise weakened, the tree owner likely has a responsibility to take that tree down or be responsible for damages caused by that tree’s fall onto neighbor’s property or a roadway.
Does the Emerald Ash Borer make ALL Tree Owners on notice of every Ash Tree’s weakened condition?
Presumably, an inspection of an Ash Tree will show that it is diseased. Therefore, if an Ash Tree falls in an urban area, the Ash Tree’s owner will likely be responsible for the damages caused as a result.
Because the Emerald Ash Borer is a relatively new-to-Ohio disease, there is no caselaw directly on-point regarding whether the owner of an Ash Tree in a rural area has constructive notice that that tree is weakened (which could give rise to a duty to remove that tree). However, it is reasonable to suggest, particularly because of the publicity surrounding the Emerald Ash Borer, that farmers who own trees in rural areas may be charged with notice that their Ash Trees are weakened. Therefore, if there is damage caused by a falling Ash Tree, even in a rural area, the owner of that tree may be held legally responsible—just because it is an Ash Tree.
The knowledge/notice of weakness that will be imputed upon owners of Ash Trees will only increase as more and more Ash Trees fail, and especially if that particular tree appears dead “for a period of several years.” Hay.
As time progresses, the liability for falling Ash Trees will likely increase, and possibly may ultimately become almost “automatic” in Ohio.