If you suddenly discovered that your neighbour's tree had fallen onto your property, you probably asked yourself what caused the tree to fall, who is going to clean it up and who has to pay for the damage. Although the neighbour may claim that the occurrence was just a freak accident, you may be entitled to recover money from your neighbour to compensate you for the damage. The theory under which legal action could be brought is called negligence. As the harmed party, it is your burden to show that each element of negligence is satisfied. Those elements are: duty, breach, causation and damages.
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You must show that the neighbour had a duty to prevent the tree from falling onto your property. This is perhaps the hardest element to establish in a case such as this. Courts weight the risk of harm against the burden of inspecting the tree for damage. If the burden is greater than the risk of harm, a court will probably not find that the neighbour had a duty to inspect the tree. For example, if the tree had been gradually leaning toward your property, the burden of taking some action to prevent the tree from falling over would likely be less than the risk of harm if the tree did fall over. On the other hand, if the tree is later discovered to have rotted out from the inside, then the burden of periodically drilling a hole into the tree to check for signs of rot would probably be greater than the risk of harm. The real question here is why the tree fell over and whether a reasonable person should have known that the tree posed a real risk of falling over.
If you establish that the neighbour owed a duty to guard against the possibility of the tree falling down, you must then show that the neighbour failed to take steps necessary to prevent the tree from falling. This is referred to as breaching the duty. For example, if the tree had been gradually leaning over for some time, did the neighbour attempt to have the tree removed or trimmed to reduce its weight?
Causation means that the neighbour's breach of duty was responsible for the tree falling onto your property, and that it was foreseeable to a reasonable person in your neighbour's position that the tree would fall down if steps were not taken to prevent it from falling. If the tree had been gradually leaning toward your property, a reasonable person in your neighbour's position should probably have known that, given enough time, the tree would fall onto your property if preventive measures were not taken.
You must show that the tree caused some damage to you, whether to your person or to your property. For example, if the tree fell onto your rose garden, damaged your lawn furniture or damaged a fence, you would likely recover the cost to replace those damaged items. If you received personal injuries, you could be entitled to receive money to compensate you for those injuries.
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