Yes No Share to Facebook
Tree Liability Risk: The Duty of Care Owed to Persons Who May Be Harmed by Trees
Question: What are a property owner's responsibilities for preventing tree-related damages?
Answer: In Canada, property owners have a legal obligation under both common law and statutory provisions, such as the Occupier's Liability Act, R.S.O. 1990, c. O.2, to ensure that their premises, including trees, do not pose a risk to others. Failing to properly maintain trees when aware of potential hazards can lead to liability for any resulting damages. Address your legal concerns effectively by contacting Olson Craig Legal for a complimentary consultation and safeguard your rights today.
Liability Involving Tree Maintenance
Although trees are extensively found throughout our urban and rural landscape, the value and benefits of trees are often taken for granted. Additionally, the potential liability risks are often unappreciated or misperceived. Owners and contractors, among others, should carefully heed the potential liability risks arising from the ownership, care, or control, of trees.
The Law
Duty of Care
Property owners have a duty to ensure that other people and the property property of other people are reasonably safe from harm arising from the negligence of a property owner. Such a duty in law was established within the general principles case of, among others, Donoghue v. Stevenson, which established the legal test for duty of care within the basic principles of negligence law. In Ontario, such a duty of care is also codified per the Occupier's Liability Act, R.S.O. 1990, c. O.2, wherein it is stated:
3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
Negligently Performed Maintenance
Owners of trees, or others responsible for trees (such as hired maintenance contractors), generally face liability only when it was known, or constructively known, that a tree failure risk was present and the owner (or others) failed to properly tend to the tree. In this way it can be thought that the injury or damage was a result of delay in caring for the tree rather than the result of risks inherent in a tree. Essentially, the negligent failure to maintain is a man-made risk rather than a natural tree risk. On the point of liability for failure to maintain trees, such was addressed within the case of Hallok v. Toronto Hydro Electric System Ltd., 2003 CanLII 8519, wherein it was said:
[14] It would appear to be common ground that a property owner, such as Park Lawn, cannot be held responsible for damage resulting from a limb on a tree falling simply on the basis that the limb or tree fell. If the evidence does not establish that there was knowledge on the part of the defendant, Park Lawn, of a dangerous condition of a tree or that there was a dangerous condition of which the defendant Park Lawn ought to have knowledge, a finding of negligence is unavailable as a matter of law. (See: Culley v. Maguire, [1957] O.J. No. 52 (C.A.) at p. 1; Quinlan v. Gates, [2000] O.J. No. 5292(S.C.J.) at p. 2; Buttoni et al. v. Henderson et al., 21 O.R. 309 (H.C.J.) at p. 371; Doucette v. Parent, [1996] O.J. No. 3493 (Gen. Div.) at p. 4; Gasho v. Clinton (Town), [2001] O.J. No. 4505 (S.C.J. (Small Claims) at p. 4).
As such, it seems that knowledge, or constructive knowledge, of a dangerous condition is a requirement of liability for negligent maintenance of trees. Note that "constructive knowledge" is knowledge which the law deems a person ought to have based on reasonableness. If a reasonably diligent person would know of a dangerous condition this is "constructive knowledge" and proving actual knowledge becomes unnecessary. Constructive knowledge is often much easier to prove than actual knowledge. As an example, following a severe storm, a court may deem that reasonably acting property owners would inspect trees for broken branches among other dangerous conditions. In this regard, it is important to note that intentionally avoiding the inspection of trees, among other things, and thereby choosing to remain ignorant of a dangerous condition may be deemed an act from which constructive knowledge is imposed.
Conclusion
Tree owners, or other persons who are hired to provide the care and maintenance of trees on behalf of the owners, are prescribed by law with a duty of care to reasonably ensure that the trees are maintained in a safe condition. If a person becomes injured or if property becomes damaged by a unreasonably maintained tree, liability may arise.