A brief review of the law on the subject of trees falling from adjoining property (this may be useful to residents in the neighborhood who have sustained damage from trees falling from adjoining property):

Liability for trees falling on adjoining property is governed by Civil Code Article 2717.1, which reads:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

This Article, passed by the Legislature in 1996, converts liability from the former "strict liability" standard to a "negligence" standard. That is, before 1996, the tree owner was generally liable for any damage or loss if his tree fell on adjoining property, and the 'victim' did not have to prove that the tree owner was 'negligent.' Since 1996, the 'victim' must prove that the tree owner was 'negligent,' i.e., that he failed to use 'reasonable care' in his custodianship of the tree.

There are not many cases interpreting the new 1996 standard, particularly in a hurricane or storm scenario. However, a leading case is Hoerner v. Title, a copy of which I attach. Boiled down, the rules in a case of a tree blown down by a storm are: For the 'victim' [in this case, you] to recover any claim against the tree owner, you must be prepared to show:

1. that the tree that fell on your property was 'defective' in some way (e.g., wholly or partially diseased or rotten, or dead) OR that the tree had manifestly been neglected by its owner (e.g., was already partially uprooted, leaning, had broken/hanging/dead limbs, or was in some other condition that called for attention and remedy);

2. that the tree owner knew or should have known of the defective or dangerous condition of the tree (see footnote below); and

3. that the tree owner, despite such actual or constructive knowledge, failed to do anything about the tree (i.e., the tree owner failed to exercise 'reasonable care' with regard to the tree).

Absent the above evidence, the tree owner, in a storm situation, is entitled to the defense of "force majeure," i.e., the theory that the fall of the tree was due to an "Act of God" as opposed to being caused by the negligence of the tree owner.

The bottom line: should you wish to proceed against the tree owner, you will need to be prepared to show that the tree was somehow "defective." If indeed the tree appears to be dead or rotten, you may well have a case. If they appear to you to be in any way defective, I suggest that you call, a.s.a.p. (and before moving the tree) an arborist to come and inspect the tree(s) to document that they are indeed rotten (or otherwise defective). Take good pictures, too, and keep notes of anything else of importance regarding the trees.

Footnote: Generally, the tree owner would be held to actual or 'constructive' knowledge of any defects in the tree if the defects were visible on simple inspection. The tree owner probably would not be held to actual or 'constructive' knowledge if the defect was hidden (e.g., rotten core of tree, not visible on the outside). ["Constructive" knowledge is that knowledge which the tree owner should have in the exercise of reasonable care. This applies to the phrase "knew or should have known:" "Constructive knowledge" is what the tree owner "should have known" in the exercise of reasonable care.]