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Tree Liability Risk: The Duty of Care Owed to Persons Who May Be Harmed by Trees
Question: How can Freed Legal Services LLP help with liability issues regarding tree maintenance?
Answer: Freed Legal Services LLP provides comprehensive support to property owners and maintenance contractors, ensuring you understand your duty of care related to tree maintenance and liability risks. With our assistance, you can navigate legal obligations and take proactive steps to prevent potential injuries or damage caused by improperly maintained trees. Don't leave yourself vulnerable; contact us for the guidance you need.
Liability Involving Tree Maintenance
The value and benefits of trees are often overlooked and the potential liability risks associated with trees are often underestimated or misunderstood. It is important for owners, contractors, and other individuals to take due care of trees so to minimize the potential for trees to cause injury or damage and thus to minimize the potential liability risks.
The Law
Duty of Care
The basic principles of common law, particularly negligence and the legal test regarding duty of care as founded within the Donoghue v. Stevenson case (a general principles case rather than tree specific case), prescribe that property owners owe a duty to ensure that other persons and the property of others persons is reasonably safe. In Ontario, these duties are also codified the Occupier's Liability Act, R.S.O. 1990, c. O.2, whereas it is said:
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
Generally, the owner of a tree, or other persons responsible for the care of a tree such as hired maintenance contractors, will be held liable for injury or damage caused by the tree only when it was known, or constructively known, that a tree failure risk was present and the owner, or other person, failed to take proper care of the tree. Accordingly, it should be viewed that the injury or damage resulted due to neglect in the care of the tree rather than as a result of inherent risks. Essentially, it is the man-made risk of negligent failure to maintain a tree rather than an inherently natural tree risk that is said to give rise to liability for injury or damage. On the point that liability arises for the negligent failure to maintain trees rather than being absolute so to include inherent risks, such concerns were addressed within the case of Hallok v. Toronto Hydro Electric System Ltd., 2003 CanLII 8519, wherein it was stated:
[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).
Accordingly, it appears that some level of awareness by knowledge, or constructive knowledge, of a dangerous condition is required if liability is to arise for negligence in the ownership, care, or control, of a tree. It is notable that "constructive knowledge" means knowledge that the law imparts upon a person who ought to actually hold knowledge based upon reasonableness principles; and as such, if a reasonably acting person would know of about a dangerous condition such is "constructive knowledge" and proving actually held knowledge is unnecessary. In many circumstances, proving constructive knowledge is much easier than proving actually held knowledge. For example, following severe storms, property owners should reasonably be on alert for broken branches as well as other dangerous conditions. Additionally, it is important to recognize that intentionally avoiding investigation and thereby choosing to remain unaware of a dangerous condition may be deemed an act of willful blindness from which constructive knowledge may also be imposed.
Conclusion
The owners of trees, or those entrusted with the care and maintenance of trees on behalf of the owners, owe a duty of care to reasonably ensure that the trees are maintained. If a person becomes injured or property becomes damaged by a tree that was improperly maintained, liability for the injury or damage may arise.
NOTE: A considerable quantity of online searches featuring “lawyers near me” or “best lawyer in” typically signifies a demand for prompt and competent legal assistance, rather than a specific job title. In Ontario, “licensed paralegals” are governed by the same Law Society that supervises lawyers and have the authority to represent clients in specific litigation cases. Key elements of this role include advocacy, legal analysis, and procedural expertise. Freed Legal Services provides legal representation within its licensed framework, focusing on strategic positioning, evidentiary preparation, and persuasive advocacy aimed at securing effective and positive outcomes for clients.
