Case against neighbor for fence damage from fallen tree

D

DawnP

New Member
Jurisdiction
Texas
During a storm 2 weeks ago my neighbors tree branch fell on my fence damaging it in several place (as well as his). The tree branch that fell off the tree was rotten. We don't really get along with this neighbor but he came over and was being very nice and it seemed like he was going to take care of everything. He hired 2 guys that I had working for me on another part of my fence (not damaged by his tree) to remove his tree limb. I have a statement from them that the branch he cleared from my neighbors tree was indeed rotten and I several pictures that show it was rotten. Long story short my neighbor is now unwilling to pay for my fence annd just repaired his side. When I threatened him with court he told us to "do what we had to do". The damages I am assuming will be around $2K and since the tree falling was not really an act of god but rather neglect of a rotten branch do I have a case with the statement from tree removal guys and the pictures?

Further confusing the issue is the fence in question was our shared fence line but there were 2 fences there. Mine was a high privacy fence(which he didn't want to go in half for when it was done) and his regular sized fence. He completely replaced his but told me he was told by our HOA that my fence was my fence and his fence was all he was responsible for. I don't think it should matter when it was his rotten tree that caused the damage.
 
You can sue him in small claims court for the cost of replacing the fence, but it seems to me like tree branches that were perfectly healthy could also have fallen during a storm with high winds.
You could also turn this over to your homeowner's insurance.
 
We contacted our insurance and our deductible would be way more then the repairs so there was no reason for a claim.

Actually 2 branched fell from his tree and hit our fence - one on the day of the storm and the other 3 days later. The big one that causes the most damage was removed by tree guys (which I have a statement saying it was rotten) and the other was removed by the homeowner itself (I assume it was rotten too).

Wasn't sure if I had a case against him or not….
 
In order to prevail, you will have to prove that your neighbor knew or should have known of the condition of the tree/branch and failed to take reasonable precautions against damage or injury. Your two posts in this thread seem to indicate that the condition was discovered after the occurrence. Do you have any evidence to support an argument that the neighbor knew or should have known of the condition?
 
zddoodah said:
In order to prevail, you will have to prove that your neighbor knew or should have known of the condition of the tree/branch and failed to take reasonable precautions against damage or injury. Your two posts in this thread seem to indicate that the condition was discovered after the occurrence. Do you have any evidence to support an argument that the neighbor knew or should have known of the condition?
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All I have is the statement from the guys he paid to remove the tree that it was rotten and pictures of the same. I do not have any pictures of the tree prior to the branch coming off so I would just be my word against his.

Does the outcome depend solely on the knowledge of the rotten limb before hand? I can't "prove" he knew about but it was pretty rotten as the pictures will show. I was hoping the pictures and statement of its condition would be enough.
 
DawnP said:
Does the outcome depend solely on the knowledge of the rotten limb before hand? I can't "prove" he knew about but it was pretty rotten as the pictures will show. I was hoping the pictures and statement of its condition would be enough.
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Did YOU know that the branch was rotten before it fell?
 
adjusterjack said:
Did YOU know that the branch was rotten before it fell?
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In fairness I don't pay much attention to my neighbors trees so no I can't say I noticed it till it was down. However, I can tell you I think I would have noticed a tree branch that rotten in MY trees.
 
Foamback said:
You think you would have noticed it is legally a far distance from your neighbor negligently ignoring the rotten branch.
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Not really. The tree in question is in the middle of his backyard and the way my backyard is setup I don't spend any time near that fence line. Even then I don't think I would pay any attention to his trees.
 
DawnP said:
Not really. The tree in question is in the middle of his backyard and the way my backyard is setup I don't spend any time near that fence line. Even then I don't think I would pay any attention to his trees.
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So then you know about the condition of every branch and tree on your property? I would think not. A tree can look perfectly healthy and have a dangerous defect or branches that rot from within.

Where a storm causes a properly maintained tree to fall or lose a limb, the damage will be considered an act of God and the owner will not be held responsible.

If your neighbor had personal knowledge or constructive knowledge of the condition of the branch and did not act, you might have a negligence case. Without it, there is no case.

Time to fix your own fence and move on.
 
DawnP said:
Does the outcome depend solely on the knowledge of the rotten limb before hand?
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No, but this seems to be the element that you'll have difficulty proving.

The law does not impose strict liability in a situation like this. In other words, the neighbor isn't liable solely because the tree is his. You have to prove negligence. The elements of negligence are duty, breach, causation and damages. Causation and damages aren't an issue. However, the duty is to prevent damage and injury resulting from known or knowable hazards. Most people aren't tree experts, and you can't assume knowledge solely from the fact that damage occurred.

DawnP said:
In fairness I don't pay much attention to my neighbors trees so no I can't say I noticed it till it was down. However, I can tell you I think I would have noticed a tree branch that rotten in MY trees.
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I have a few trees on and near my property. I rarely look at them and wouldn't likely have the slightest idea about their condition.
 

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