• When Hurricanes Are a Fact of Life, Maintaining Trees Is a Floridian's Duty
  • December 5, 2016 | Authors: Stephen E. Ludovici; Raedtha A. Vasquez
  • Law Firms: Jones Walker LLP - Miami Office; Jones Walker LLP - Baton Rouge Office
  • If your tree falls during a storm and damages your neighbor's property, are you liable? The answer is maybe.

    Floridians have a long history of dealing with hurricanes and tropical storms, from the 1935 Labor Day hurricane striking the Florida Keys to the more recent Hurricane Matthew skirting the upper east coast. With heavily forested north-central Florida lacking any recent experience with tropical force and hurricane force winds, a significant portion of the reported Hurricane Matthew damage in the state involved falling trees and tree limbs. In light of such damage, many have asked what responsibility they may have for a tree that falls from one's property onto a neighbor's property.

    It is generally accepted as a matter of law that damage caused by a hurricane, including a tree falling over, is considered an Act of God. An Act of God is "[a]ny accident, due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pains, or care, reasonably to have been expected, could have been prevented." 1A C.J.S. Act of God, at 757 (1985). The doctrine is used defensively to relieve a defendant of liability to a plaintiff. Thus, for instance, Act of God was successfully used by Florida Power Corp. to avoid liability to the City of Tallahassee when a hurricane struck and prevented the power company from delivering electricity to the city. Florida Power Corp. v. City of Tallahassee, 18 So. 2d 671, 675 (Fla. June 27, 1944).

    However, it's important to note that an Act of God is not simply any pure act of nature; if the act of nature and the damages caused thereby were foreseeable and preventable, the Act of God doctrine does not apply. Or, as the Third DCA put it, "The fact that the damage was a result of a tropical storm is not an absolute defense. Where a force of nature combines with a condition created by the defendant's negligence and produces injury, the defendant may be liable." Rubin v. Appel, 194 So. 2d 318, 319 (Fla. 3d DCA Jan. 31, 1967). Thus, in Rubin, the tree owner was held liable when two of his trees landed on a neighbor's house during a tropical weather event. Id. On the other hand, when there is no knowledge that a palm tree is in a defective or rotten condition making it susceptible to dropping fronds that may cause damage, it was an Act of God. Lisk v. City of W. Palm Beach, 36 So. 2d 197, 198-99 (Fla. 1948).

    In fact, with Floridians' frequent experiences with tropical weather, Floridians may be held to a higher standard of care than residents in states with fewer tropical storms. Indeed, the Third DCA took as a matter of judicial notice that "it is within the knowledge of all who have long resided in this area that we are occasionally subjected to winds of hurricane force, and that these winds have a tendency to topple trees, break limbs, and send unsecured objects flying about." Rubin v. Appel, 194 So. 2d 318, 319 (Fla. 3d DCA 1967). Under that reasoning, a Florida resident would have a duty to inspect and maintain the trees on his or her property in anticipation of tropical weather. Similarly, the Florida resident would have a duty to secure loose personal property that may blow away in a storm and cause damage, such as lawn furniture or garden ornaments.

    In short, pruning your trees and securing property in anticipation of a storm protects you from whipping out your wallet if your neighbor's property is damaged by a tree falling from your property.