Is a property owner subject to liability if a tree on their property falls on a neighboring property and causes property damage or bodily injury?
The client has a eucalyptus tree in the corner of his property. Occasionally branches will shed from the tree and fall. Sometimes those branches fall on the adjacent neighbor's property, but the neighbor has not suffered any damages. The neighbor argues that the client should trim the tree and will be strictly liable for any damages, personal injury or otherwise, that could be caused by falling branches in the future.
Subdivision (a) of Cal. Civ. Code § 1714 provides that people are responsible for injuries caused to another by their want of ordinary care or skill in the management of their property to the extent that the injured person did not bring the injury upon him or herself. This is essentially a codification of the law of negligence. Each person has a duty to use reasonable care in the circumstances. (Cal. Civ. Code § 1714, Cabral v. Ralphs Grocery Co., Gonzalez v. Southern Cal. Gas Co.)
The owner of a piece of land can be liable for damages caused by a natural or artificial condition on his or her land to neighboring persons or property. (Sprecher v. Adamson Companies)
In Coates v. Chinn, the plaintiffs were the widow and child of a man who was killed when his automobile struck a large limb that had fallen from a eucalyptus tree onto the highway. The tree was part of a row of eucalyptus trees growing on the defendant's property, which was adjacent to the highway. At trial, the defendants had successfully moved for nonsuit after the close of the plaintiffs' case. The plaintiffs appealed. The California Supreme Court held that the plaintiffs were entitled to have their claim in negligence submitted to the jury. While the Court did not decide the issue of liability, it noted that even though the branch in issue showed no sign of rot, the defendant knew of the propensity of healthy, untrimmed eucalyptus limbs to fall.
Liability for damages caused by an overhanging tree may also be based in nuisance. An actionable nuisance is anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. (Bonde v. Bishop, Cal. Civ. Code § 3479, Ghazarian v. Blossom)
It is no longer the case that a defendant may be strictly liable for nuisance. Nuisance will only be established where the defendant's interferences were intentional and unreasonable or result from negligent, reckless, or abnormally dangerous conduct. (Lussier v. San Lorenzo Valley Water Dist.)
In Bonde v. Bishop, the California Court of Appeal for the First District held that the branches of the defendant's tree, which were overhanging the plaintiff's property and had fallen onto their property in the past, constituted a nuisance.
In Ghazarian v. Blossom, the Superior Court of California for the County of San Mateo found that the defendant was liable to the plaintiff for damages caused by a tree limb that fell from a tree on the defendant's property onto the plaintiff's property. The Court found that the defendant was negligent in maintaining the tree based on a previous incident in which a large limb fell from the tree. The Court also noted that even if the defendant had not been negligent, they still would have been liable for at least the costs of removing the fallen limb from the plaintiff's property because the fallen limb was a nuisance.
Subdivision (a) of Cal. Civ. Code § 1714 provides that people are responsible for injuries caused to another by their want of ordinary care or skill in the management of their property to the extent that the injured person did not bring the injury upon him or herself:
(a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. The design, distribution, or marketing of firearms and ammunition is not exempt from the duty to use ordinary care and skill that is required by this section. The extent of liability in these cases is defined by the Title on Compensatory Relief.
As explained by the California Supreme Court in Cabral v. Ralphs Grocery Co., 51 Cal.4th 764, 248 P.3d 1170, 122 Cal.Rptr.3d 313, 11 Cal. Daily Op. Serv. 2627, 2011 Daily Journal D.A.R. 3140 (Cal. 2011), Cal. Civ. Code § 1714 imposes a duty on each person to use reasonable care in the circumstances. Departure from this fundamental principle may be justified upon consideration of the foreseeability of harm, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, public policy considerations, and the availability of insurance for the risk involved (at 771):
The general rule in California is that “[e]veryone is responsible ... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person....” (Civ.Code, § 1714, subd. (a).) In other words, “each person has a duty to use ordinary care and ‘is liable for injuries caused by his failure to exercise reasonable care in the circumstances....' ” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472, 63 Cal.Rptr.2d 291, 936 P.2d 70, quoting Rowland v. Christian, supra, 69 Cal.2d at p. 112, 70 Cal.Rptr. 97, 443 P.2d 561 (Rowland).) In the Rowland decision, this court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Rowland, at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561; accord, e.g., Castaneda v. Olsher, supra, 41 Cal.4th at p. 1213, 63 Cal.Rptr.3d 99, 162 P.3d 610; John B. v. Superior Court (2006) 38 Cal.4th 1177, 1192, 45 Cal.Rptr.3d 316, 137 P.3d 153; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477, 110 Cal.Rptr.2d 370, 28 P.3d 116; Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 473, 63 Cal.Rptr.2d 291, 936 P.2d 70.) As we have also explained, however, in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where “clearly supported by public policy.” (Rowland, at p. 112, 70 Cal.Rptr. 97, 443 P.2d 561; accord, John B., at p. 1191, 45 Cal.Rptr.3d 316, 137 P.3d 153; Merrill v. Navegar, at p. 477, 110 Cal.Rptr.2d 370, 28 P.3d 116.) 2
This is essentially a codification of the law of negligence, and was described in the same breath as the elements of negligence by the California Court of Appeal for the Fourth District in Gonzalez v. Southern Cal. Gas Co., 201 Cal.App.4th 1233, 134 Cal.Rptr.3d 364, 11 Cal. Daily Op. Serv. 14981, 2011 Daily Journal D.A.R. 17858 (Cal. Ct. App. 2011) (at 1240):
“The elements of a cause of action for negligence are: the ‘defendant had a duty to use due care, that he [or she] breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’ ” (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278, 12 Cal.Rptr.3d 846 (Vasquez).) “Under general negligence principles, ... a person ordinarily is obligated to exercise due care in his or her own actions so as not to create an unreasonable risk of injury to others, and this legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor's conduct.” (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716, 110 Cal.Rptr.2d 528, 28 P.3d 249.) Civil Code section 1714, subdivision (a), provides: “Everyone is responsible ... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property ..., except so far as the latter has, ... by want of ordinary care, brought the injury upon himself or herself.”
In Sprecher v. Adamson Companies, 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121 (Cal. 1981) ("Sprecher"), the California Supreme Court rejected the common law distinction between natural and artificial conditions of land and held that the owner of a piece of land can be liable for damages caused by a natural or artificial condition on his or her land to neighboring persons or property (at 370-372):
In addition, adherence to the rule in California would produce an anomalous result. A possessor of land would owe a duty of care to protect trespassers, invitees and licensees, but not his neighbor, from harms threatened by a natural condition of the land. It has long been established in California that a possessor of land is subject to liability for harm caused a person upon the land by a natural condition. (E.g., Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 233, 282 P.2d 69; but see Civ. Code, § 846.) It is difficult to see why this court should support a rule which would allow a trespasser to bring an action in negligence that would be denied a neighbor, where both were standing on either side of the possessor's boundary line and were both struck by a dead limb from his tree.
The trend in the law is in the direction of imposing a duty of reasonable care upon the possessor of land with regard to natural conditions of land. The erosion of the doctrinal underpinning of the rule of nonliability is evident from even a cursory review of the case law. Also evident is the lack of congruence between the old common law rule of nonliability and the relevant factors which should determine whether a duty exists. All this leads to but one conclusion. The distinction between artificial and natural conditions should be rejected. "A (person's) life or limb (or property) does not become less worthy of protection by the law nor a loss less worthy of compensation under the law" because that person has been injured by a natural, as opposed to an artificial, condition. (Rowland v. Christian, supra, 69 Cal.2d at p. 118, 70 Cal.Rptr. 97, 443 P.2d 561.)
"It bears repetition that the basic policy of this state ... is that everyone is responsible for any injury caused to another by his want of ordinary care or skill in the management of his property. The factors which may in particular cases warrant a departure from this fundamental principle do not warrant the wholesale immunit(y) resulting from the common law (distinction) .... The proper test to be applied to the liability of the possessor of land ... is whether in the management of his property he has acted as a reasonable (person) in view of the probability of injury to others ...." (Id., at pp. 118-119, 70 Cal.Rptr. 97, 443 P.2d 561.)
[30 Cal.3d 372] It must also be emphasized that the liability imposed is for negligence. The question is whether in the management of his property, the possessor of land has acted as a reasonable person under all the circumstances. The likelihood of injury to plaintiff, [636 P.2d 1129] the probable seriousness of such injury,
the burden of reducing or avoiding the risk, the location of the land, and the possessor's degree of control over the risk-creating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendant's conduct. 9
Similarly, in MillIgan v. City of Laguna Beach, 196 Cal.Rptr. 38, 34 Cal.3d 829, 670 P.2d 1121 (Cal. 1983), the California Supreme Court held that the governmental immunity of public entities for losses caused by natural conditions on unimproved public property did not apply when injuries were caused to people on adjacent property. In that case, a eucalyptus tree on city property had fallen onto the plaintiff's residence on adjacent property (at 830-831):
In a bifurcated trial based on stipulated facts, the trial court concluded that Government Code section 831.2, which immunizes [34 Cal.3d 831] public entities for injuries caused by natural conditions of unimproved public property, precluded recovery of damages from the City of Laguna Beach. 1 Plaintiffs appeal the ensuing judgment.
We have determined that the immunity is applicable only to users of the governmental property and is inapplicable to injuries caused to nonusers on adjacent property, as occurred here. Accordingly we reverse the judgment.
In Coates v. Chinn, 51 Cal.2d 304, 332 P.2d 289 (Cal. 1958), the plaintiffs were the widow and child of a man who was killed when his automobile struck a large limb that had fallen from a eucalyptus tree onto the highway. The tree was part of a row of eucalyptus trees growing on the defendant's property, which was adjacent to the highway. At trial, the defendants had successfully moved for nonsuit after the close of the plaintiffs' case. The plaintiffs appealed. After concluding that the eucalyptus trees were an artificial condition, which is no longer a relevant consideration in light of Sprecher, the California Supreme Court held that the plaintiffs were entitled to have their claim in negligence submitted to the jury. While the Court did not decide the issue of liability, it noted that even though the branch in issue showed no sign of rot, the defendant knew of the propensity of healthy, untrimmed eucalyptus limbs to fall (at 308-309):
Here the record shows that the trees were permitted to grow to considerable size, that defendants knew that their limbs had been falling for years, and that the limb with which plaintiffs collided had extended out over the highway some thirty feet. A tree surgeon familiar with the area testified that the limbs of the tree here involved were healthy, and that he saw no evidence of rot, decay, or disease. However, he stated that in Napa County eucalyptus trees grow very fast and become rangy; that their limbs have a tendency to break during the hot days of summer, because of the excessive flow of sap, and in the early fall with the first rains and winds; and that the trees will drop their limbs, even good healthy ones. He further testified that the standard method of preventing eucalyptus trees from becoming a hazard is to top them and shorten their limbs, so as to reduce the amount of leverage [51 Cal.2d 309] at the points where the limbs are apt to break; and that he performed this service for ten or fifteen clients a year. Defendant Mrs. Chinn, called under section 2055 of the Code of Civil Procedure, testified that she had been told that eucalyptus trees drop their limbs; that the limbs do not fall regularly, but fall at times; that 'it is the nature of the tree.' She further stated that the trees had been growing along the road as long as she could remember; that she did not know when they had been planted; that in the last five years she had had no work done on the trees by a tree surgeon; and that so far as she could see, the trees were perfectly healthy.
In view of this evidence, plaintiffs properly contend that it was a question of fact whether defendants acted as reasonably prudent persons in permitting the eucalyptus trees to grow alongside the highway without taking any precautionary steps to control their natural propensity to drop their limbs, particularly during the rainy weather of the early fall when the accident happened. Accordingly, plaintiffs were entitled to have their case submitted to the jury on this issue of negligence. See Mosley v. Arden Farms Co., supra, 26 Cal.2d 213, 217, 157 P.2d 372, 158 A.L.R. 872.
This is not a case of damage caused by the fall of a tree onto a highway where disease had attacked the tree and rotted the roots but reasonable inspection of the tree prior to its fall would not have revealed the defect. While the landowner has not been held liable in that situation (Caminer v. Northern & London Investment Trust, Ltd., 2 K.B. 64, 11 A.L.R.2d 617; see also Note, 11 A.L.R.2d 626), here the distinguishing factor is the natural propensity of healthy, untrimmed eucalyptus limbs to fall to the ground and defendants' knowledge of such propensity.
Liability for damages caused by an overhanging tree may also be based in nuisance. In Bonde v. Bishop, 112 Cal.App.2d 1, 245 P.2d 617 (Cal. App. 1952), the California Court of Appeal for the First District held that the branches of the defendant's tree, which were overhanging the plaintiff's property and had fallen onto their property in the past, constituted a nuisance (at 3-4):
There is substantial evidence to support the court's finding that the branches of the tree overhanging plaintiffs' property constitutes a nuisance and an ever present danger to plaintiffs' premises. On defendants' property, approximately 20 feet from the line between the properties of the parties, there is a white oak tree 50 or 60 feet tall, the trunk [112 Cal.App.2d 3] of which is approximately 4 feet in circumference. Three of its main limbs extend approximately 25 feet over and about 40 feet above plaintiffs' property, one over the driveway area, one over the den area and one over the patio area. In the main part of the tree about 14 feet above the base is a large hole. About 5 o'clock on the morning of September 2, 1950, a large limb broke loose from the tree, smashed through plaintiffs' garage and smashed a section of the fence. Defendant Bishop when asked what he was going to do about the damage stated that it was not his responsibility. This damage was paid for by insurance held by plaintiffs. There is a continual dropping of smaller branches on the roof, driveway and patio. One small branch almost hit plaintiff while he was standing in the middle of his driveway. It is almost a daily chore to clean the debris from the tree. The noise of the dropping of the smaller branches on the roof constantly reminds plaintiffs of the danger. During the rainy season it is a two-hour job every Sunday to clear the gutters and the drain spouts of the debris from the tree. Plaintiffs are afraid of the overhanging limbs and because of them are afraid to leave their baby out in the patio. The debris requires plaintiffs to sweep the patio and driveway daily and rake the lawn before mowing it. Finally, plaintiff put screens on the gutters so he would not be required to clean them. When defendant Bishop was told by Mrs. Bonde that plaintiffs
desired the tree cut back to their line, he not only refused but warned her that if plaintiffs had it cut back and damaged the tree in any way, defendants would sue plaintiffs. After the limb fell defendants had the foliage thinned out, removing two loads of brush and a considerable quantity of wood.
Defendants rely mainly on the testimony of their only witness, a tree expert, who gave it as his opinion that for safety is is not necessary to cut down the tree. (The court did not order the tree cut down, merely ordered the nuisance to be abated. This requires only the removal of the overhanging limbs.) The parties and the court concluded from the witness' testimony that he also meant that the overhanging limbs were safe, although he did not say so. He did testify that he had thinned the tree to lighten it for safety, and that the tree 'would continue to stand until such until such time as the tree would leaf out and again get heavy.' On cross-examination when asked if he was willing to state that the overhanging branches would not fall at any time, he answered in the negative, saying[112 Cal.App.2d 4] that a tree is not static and conditions do change and are constantly changing. He also testified that the hole probably extends down the tree. He assumed that there was decay there which might lessen the strength of the tree.
The above testimony is amply sufficient to demonstrate that the overhanging branches are a nuisance. Apparently this is one of those rows between neighbors in which the defendants are standing on what they erroneously believe to be their strict legal rights to the exclusion of any consideration of the fair, decent, neighborly and legal thing to do.
The fact that an overhanging branch did fall, the age of the oak tree, the evidence of some decay, indicates that there is danger of the overhanging limbs falling. But assuming as claimed by defendants that the tree is safe in that respect, there is still ample evidence that its limbs constitute a nuisance as to plaintiffs. The constant dropping of small branches on the roof and in the yard, the inability to leave their baby in the patio because of that fact, the constant work required to keep their premises clean, alone establish the nuisance.
Cal. Civ. Code § 3479 defines an actionable nuisance as anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway:
Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.
As explained by the California Court of Appeal for the Sixth District in Lussier v. San Lorenzo Valley Water Dist., 206 Cal.App.3d 92, 253 Cal.Rptr. 470 (Cal. App. 1988), it is no longer the case that a defendant may be strictly liable for nuisance. Nuisance will only be established where the defendant's interferences were intentional and unreasonable or result from negligent, reckless, or abnormally dangerous conduct (at 100-102):
As the Restatement explains, "In early tort law the rule of strict liability prevailed. An actor was liable for the harm caused by his acts whether that [206 Cal.App.3d 101] harm was done intentionally, negligently or accidentally. In course of time the law came to take into consideration not only the harm inflicted
but also the type of conduct that caused it, in determining liability. This change came later in the law of private nuisance than in other fields. Private nuisance was remediable by an action on the case irrespective of the type of conduct involved. Thus the form of action did not call attention to the change from strict liability to liability based on conduct. But the change has occurred, and an actor is no longer liable for accidental interferences with the use and enjoyment of land but only for such interferences as are intentional and unreasonable or result from negligent, reckless or abnormally dangerous conduct." (Rest.2d, supra, § 822, com. b, pp. 109-110; see Prosser, supra, § 4, pp. 20-23.)
In California, it is settled that where negligent conduct, i.e., conduct that violates a duty of care toward another, also interferes with another's free use and enjoyment of his property, nuisance liability arises. (See, e.g., Spaulding v. Cameron (1952) 38 Cal.2d 265, 266, 239 P.2d 625; Granone v. County of Los Angeles (1965) 231 Cal.App.2d 629, 649-651, 42 Cal.Rptr. 34; see also Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 317-318, 331 P.2d 1072; Calder v. City Etc. of San Francisco (1942) 50 Cal.App.2d 837, 839-840, 123 P.2d 897; 47 Cal.Jur.3d, supra, § 2, pp. 200-201; Rest.2d, supra, § 822, com. b, pp. 109-110.) Applying this principle in light of the holding in Sprecher v. Adamson Companies, supra, 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121, it follows, a fortiori, that where one's negligence concerning a natural condition of his land injuriously invades another's right to the use and enjoyment of his property, nuisance liability may arise. Thus, despite the Sprecher court's expressly limited focus on negligence actions, its holding extends further and leads ineluctably to the conclusion that a possessor of land is no longer absolutely immune from nuisance liability for injuries caused by natural conditions.
We do not intend to suggest, however, that one is strictly liable for damages that arise when a natural condition of one's land interferes with another's free use and enjoyment of his property. Such a rule would, quite [206 Cal.App.3d 102] anomalously, equate natural conditions with dangerous animals, ultrahazardous activities, or defective products, for which strict liability is reserved. (See generally 6 Witkin Summary of California Law (9th ed. 1987) Torts, §§ 1218-1315, pp. 653-774; Prosser, supra, §§ 75-78, pp. 534-559.) On the contrary, as we shall explain, where injury is allegedly caused by a natural condition, the imposition of liability on a nuisance theory, as a practical matter, requires a finding that there was negligence in dealing with it. 5
As noted above, a nuisance requires some sort of conduct, i.e. intentional and unreasonable, reckless, negligent, or ultrahazardous, that unreasonably interferes with another's use and enjoyment of his property. In determining what conduct by the District could have caused a nuisance, we consider the distinction between natural and artificial conditions on land to be a valid and useful analytical tool, even though it no longer provides an absolute limitation on liability. 6
In Ghazarian v. Blossom, 2018 Cal. Super. LEXIS 200 (Cal. Super. Ct. January 22, 2018), the Superior Court of California for the County of San Mateo found that the defendant was liable to the plaintiff for damages caused by a tree limb that fell from a tree on the defendant's property onto the plaintiff's property, damaging the plaintiff's fence, garage roof, fruit trees, and other landscaping. The Court found that the defendant was negligent in maintaining the tree based on a previous incident in which a large limb fell from the tree and that the defendant's negligence was the proximate cause of the plaintiff's damages. The Court also noted that even if the defendant had not been negligent, she still would have been liable for at least the costs of removing the fallen limb from the plaintiff's property because the fallen limb was a nuisance (at 5-7):
As the owner of the tree, Defendant is liable to Plaintiff for the damages proximately "caused by the fallen limb if Defendant failed to take the action that a reasonable person standing in her shoes would have taken to prevent the damage. Alcaraz v. Vece, 14 Cal.4th 1149, 1156, 60 Cal. Rptr. 2d 448, 929 P.2d 1239 (1997) ("The proper test to be applied to the liability of the possessor of land ... is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others"). It does not matter that Defendant lacks control of the wind, the rain, the rot, the animals, and other factors that have affected the stability of the tree. Id. ("This duty to maintain land in one's possession in a reasonably safe condition exists even where the dangerous condition on the land is caused [*6] by an instrumentality that the landowner does not own or control."); accord Sprecher v. Adamson Companies, 30 Cal.3d 358, 367-371, 178 Cal. Rptr. 783, 636 P.2d 1121 (1981) ("everyone is responsible for any injury caused to another by his want of ordinary care or skill in the management of his property").
Here, Defendant is liable for her negligence in maintaining the tree because the Court finds that a reasonable homeowner standing in the shoes of Defendant in 2016, having witnessed the tree's condition and capability of losing massive limbs, would not have allowed the tree to remain standing on her property without having a qualified person perform a risk assessment of the tree to confirm that it was safe to leave the tree standing. A reasonable home owner would have specifically requested an express clean bill of health and would not have assumed the tree was safe merely because a tree service had come out and pruned the tree. Moreover, based on the unrebutted arborist's assessment provided by Plaintiff at trial, Defendant would most likely have been told to remove the tree or take other actions that were not taken to avoid future accidents had Defendant obtained a risk assessment of the tree in 2016. The Court therefore holds that Defendant's negligence is the proximate cause [*7] of Plaintiff's damages.
Even if Defendant had acted reasonably in not taking further action beyond having the tree service prune back the tree, Defendant would still be liable for at least the costs of removing the fallen limb from Plaintiffs property because the fallen limb was a "nuisance." Mattos v. Mattos, 162 Cal. App. 2d 41, 43, 328 P.2d 269 (1958) (property owner has "absolute liability ... to remove portions of his trees which extend over and upon another's land so as to constitute a nuisance" whether those limbs are hanging over the property or have fallen onto it); Bonde v. Bishop, 112 Cal. App. 2d 1, 4, 245 P.2d 617 (1952) (owner of trees that dropped limbs on plaintiffs property was liable to plaintiff to abate the nuisance).
In Mercury Cas. Co. v. City of Pasadena, 222 Cal.Rptr.3d 408, 14 Cal.App.5th 917 (Cal. App. 2017), the determinative issue in the case was whether an inverse condemnation claim applied to a tree on city property that fell and damaged the home on a neighboring property. The California Court of Appeal for the Second District found that the tree was not a public improvement and therefore inverse condemnation did not apply. However, in coming to this conclusion, the Court also noted that the City's five-year cycle for inspecting and caring for City trees was adequate and met the standard of care (at 931-932):
In this case on the other hand, the City's five-year cycle for inspecting and caring for City trees was not only adequate, the undisputed evidence established that it exceeded the standards used by most other cities. In other words, there is no evidence that the City made " ‘a deliberate policy decision to shift the risk of future loss to private property owners rather than to absorb such risk as a part of the cost of the improvement paid for by the community at large.’ " (Paterno, supra, 74 Cal.App.4th at p. 86, 87 Cal.Rptr.2d 754.)
In sum, we conclude that Tree F-2 was not a work of public improvement because there was no evidence it was planted as part of a planned project or design serving a public purpose or use. We also conclude that the City's tree maintenance plan, as implemented by the City Manager under the Ordinance, does not subject the City to liability for an inverse condemnation claim because no evidence was presented that the plan was deficient. Because the City could not be held inversely liable for the damage caused to the Dusseaults' home by
[222 Cal.Rptr.3d 420]
the tree, we reverse the judgment.14 Our
[14 Cal.App.5th 932]
holding, of course, does not immunize the City from all forms of liability for damage caused by its trees. In a case like this, a property owner (or subrogee) may still sue the public entity for, among other claims, dangerous condition of public property. (See Gov. Code, § 835; see also Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 834, 196 Cal.Rptr. 38, 670 P.2d 1121 [a public entity is not immune from liability for a dangerous condition of public property created by a city-owned tree that damaged adjacent private property].)