Hurricane Ivan has left our shores causing billions of dollars in damage to properties, homes, businesses and general infrastructure. Also left behind by this recent natural disaster is the lingering question of the liability of property owners as a result of trees, branches, mud, landslides, objects and other materials from their property causing damage to a neighboring property.
For example, one recurring instance involves a neighbor whose large tree (the branches of which overhang a neighbor’s property and public sidewalk) was uprooted and blown down by the winds of the hurricane and waterlogged earth, crashing through an expensive retaining wall and causing substantial damage to a neighboring property. Also, the tree’s branches protruded into the public sidewalk causing injury to a pedestrian. Is the property owner to be blamed and be affixed with liability for this Act of God?
This question can be examined and hopefully answered by application of the principles of law relating to nuisance as well as negligence. Generally, a nuisance occurs where a condition or activity unduly interferes with the user of land. Nuisance has been defined by one of the leading legal texts as “… an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, profit, or other right used or enjoyed in connection with land when it is a private nuisance…” .
The older cases on the law of nuisance held that natural nuisances and Acts of God are not actionable as a nuisance per se. The separate and autonomous nature of neighboring properties was given primacy as it was felt that each property owner was entitled to exploit his or her property without being concerned about the operations of nature to avoid damage or loss to neighbors.
The boundaries of nuisance have been expanded and many decisions over the past three decades have established that the Courts in particular circumstances will place the responsibility for natural nuisances and Acts of God squarely on the shoulders of a landowner. The authorities have held that in certain instances there is a duty of care imposed upon a landowner for natural nuisances. The law of nuisance has not been static in this regard and one leading Judge in his ruling commented that “…in…recent times…the law has recognised an occupier’s duty as one of a more positive character than merely to abstain from creating, or adding to, a source of danger or annoyance..”
The Courts have therefore imposed a duty of care, in certain instances, on landowners to their neighbors for the occurrence of natural nuisances and naturally occurring hazards. So, for example, landowners have been held liable to their neighbors in cases of soil slippage onto adjoining property, overflow of a sewer caused by natural flooding and coconuts falling from a tree onto a pedestrian’s head.
It is important to stress that the above cases all state that the duty of care is to be measured not simply by “…the contours of the reasonable man at large…” but one needs to examine the facts of each case as well as the personal abilities, knowledge and circumstances of the landowner as well as the neighbor being affected. The test the courts use include the following:-
- Did the occupier know (or reasonably ought to have known) that the naturally occurring hazard would occur?
- Did the occupier know of or been warned of the hazard or that the occurrence of a natural event would exacerbate the hazard?
- In the “circumstances” of the case did the occupier take all reasonable steps to prevent or minimize the risk of injury or damage to the neighbor or his property?
The “circumstances” the court will examine vary according to the facts of each case but include the:
- knowledge of the hazard,
- extent of the risk of damage caused by the hazard,
- practicability of the landowner preventing or minimizing the foreseeable injury,
- cost of minimizing the injury,
- time available to minimize the risk,
- probable cost of the work to minimze the risk
- relative financial and other resources of the disputing parties, and
- ability and reasonableness of the affected party to mitigate the hazard.
It clear is that in certain circumstances a landowner can be liable in nuisance or negligence for a naturally occurring event. In our example above (of the falling tree) the Court will examine the above factors to determine if the landowner is liable. In some instances he may have a duty of care but in others he may not. Landowners who can afford it are therefore well advised to consider liability insurance which offers some protection if they are held to be accountable for their neighbors loss.
Donovan C. Walker is an Attorney-at-Law and a Partner at DunnCox.
He can be contacted at donovan.walker@dunncox.com