As a general matter, landowners are required to maintain trees, but there is generally no liability when healthy trees fall during strong storms. However, given the landowner’s responsibility to protect people lawfully on the property, these cases are common. This year, the family of Jaylen Raggs reportedly settled with the city of Chicago for $1.55 million after Raggs, then 4, sustained a depressed skull fracture and brain damage when he was struck by a fallen tree branch on March 31, 2006. City workers had trimmed the parkway tree and the family argued that they should have realized the branch was diseased or dying. What is interesting about that settlement is that under the Local Governmental and Governmental Employees Tort Immunity Act (Act) ( 745 ILCS 10/1–206, 3–101 (West 1996)) local public entities are not liable for ordinary negligence in the upkeep of their recreational areas; they are only liable for willful and wanton conduct. Bialek v. Moraine Valley Community College School District 524, 267 Ill. App. 3d 857, 204 Ill. Dec. 924, 642 N.E.2d 825 (1994).
Liability is based on early cases such as Gibson v. Denton, 4 A.D. 198, 38 N.Y.S 554 (1896),where the court found that an owner could be responsible for decaying trees located on her property. Usually a court will look at whether a tree owner had actual or constructive knowledge of a hazard.
In Illinois, the standard was stated in Dudley v. Meadowbrook, Inc., 166 A.2d 743 (D.C. 1961): “We think the sound and practical rule is that liability in such cases is to be determined by the test of negligence and that a landowner should be held to the duty of common prudence in maintaining his property, including trees thereon, in such a way as to prevent injury to his neighbor’s property.”
One interesting twist in this case is that Miller reportedly kept the branch to turn it into art but was forced to turn it over as evidence. While chain of custody is not as pressing an issue in civil cases, it will be interesting to see how her possession of the branch effects its use in evidence. It will probably not be a barrier since it seems uncontested that she was injured by a limb from that particular tree.
There is also the question of plaintiffs’ conduct in driving during a thunderstorm. However, most people would agree that one should be able to drive during a storm — depending of course on its severity.
Source: Herald Review
Jonathan Turley