This is a case of first impression for the New Hampshire Supreme Court concerning the liability of a landowner for damage caused by trees overhanging abutting property. The case of Belhumeur v. Zilm, 157 N.H. 233 (2008) held that there is no liability to the owner of land for damage caused by wild animals that live on the land. In Belhumeur, wild bees nesting on Zilm's land attacked and injured people on abutting land. The language of the Court's opinion gave the impression that the rule applied to plants as well as animals: "to require a landowner to abate all harm potentially posed to his neighbors by indigenous animals, plants or insects naturally located upon his property would impose an enormous and unwarranted burden." 157 N.H. at 237. (See Trees in the Right of Way: Ice Storm Highlights Uncertainty New Hampshire Town and City, February 2009.) This case dispels that impression.
Pesaturo sued Kinne for nuisance and negligence, alleging that limbs from Kinne's pine tree broke off and damaged Pesaturo's fence, and the encroaching root system caused her to trip. Pesaturo also alleged that Kinne's oak tree contains "swinging dead limbs" that menacingly overhang Pesaturo's driveway and thus prevent its use. Relying on Belhumeur, the trial court granted Kinne's motion to dismiss both claims, and Pesaturo appealed to the Supreme Court.
The Court upheld dismissal of the nuisance claim because "[i]n order to create a legal nuisance, the act of man must have contributed to its existence." There was no allegation that Kinne actively contributed to the condition of the trees.
With respect to negligence, however, the Court held that Belhumeur does not apply to trees. Instead, the Court, quoting from the New York case of Ivancic v. Olmstead, 488 N.E.2d 72, 73-74 (N.Y. 1985), announced a new doctrine:
[B]ecause there is a forseeable risk of injury when a tree is decayed or defective, a landowner who knows or should know that his tree is decayed or defective has a duty to maintain the tree to eliminate this dangerous condition. Thus, we hold that a landowner who knows or should know that his tree is decayed or defective and fails to maintain the tree reasonably is liable for injuries proximately caused by the tree, even when the harm occurs outside of his property lines…. However, a landowner does not have a duty to "consistently and constantly check all trees for nonvisible decay…. Rather the manifestation of [the tree's] decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm.
Under this standard, Pesaturo sufficiently stated a claim that, because Kinne knew about his oak tree's "swinging dead limbs," Kinne had a duty to eliminate the condition. The case was remanded to the trial court for further proceedings on the negligence claim.
The Court also noted, "we express no opinion on the issue of whether the availability to the plaintiff of a self-help remedy, i.e., cutting down the offending overhanging tree branches herself, would defeat the plaintiff's negligence cause of action or constitute a defense to the same."
This case is particularly important for municipalities in the context of trees within the rights of way of highways (which are almost always owned by the abutter) and trees overhanging rights of way from abutting property. It was previously unclear whether abutting property owners had any duty of care concerning such trees. Now, it appears that they do. By the same token, although municipalities rarely own trees in the right of way, they do have the authority to remove them when they become dangerous under RSA 231:145 - :146. This case suggests that municipalities (as well as the tree owners) may be exposed to liability for negligence in dealing with obviously decayed trees that they have the power to remove from the highway right of way.