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Court rules on duty of care for healthy trees in residential areas

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The Indiana Court of Appeals has reiterated its stance that urban or residential area landowners have a duty to take reasonable precautions regarding their own trees, healthy or otherwise, and make sure they don’t harm a neighbor’s property based on the size and where they are planted.

A unanimous ruling today in Stephen M. Scheckel v. NLI, Inc., No. 02A04-1010-SC-645, reanalyzes an issue that the intermediate appellate court has dealt with regularly in past years and last addressed more than a year ago.

The root of the Allen County case is a dispute between property owner Stephen Scheckel and neighboring property owner NLI over damage caused by a tree. Scheckel lives next to a lot separated by a chain-link fence. A tree planted nearby grew into the fence and its roots grew under the sidewalk and damaged both the fence and pavement, leaving the fence gate unusable and the walkway cracked and buckled. The cost to remove the tree and repair the damage was $2,510, according to the court records. Scheckel complained to the property owner, NLI, about the damage, but NLI didn’t take any action and Scheckel filed a small claims complaint on negligence and nuisance theories.

After a bench trial, the judge granted judgment in favor of NLI on the grounds that the size and placement of the tree caused the damage to the fence and walkway and the landowner isn’t liable for harm caused outside the land by a natural condition of the land.

But the trial judge erred in that decision, the appellate panel found, based on the evolution of natural conditions common law theory during the past 20 years.

Relying on its March 2010 ruling in Marshall v. Erie Ins. Exch., 923 N.E.2d 18,22 (Ind. Ct. App. 2010), the appeals judges focused on the exception to the natural condition rule created by the Indiana Supreme Court two decades ago. Agreeing with what other states have held, the Indiana panel in Marshall moved away from a strict application of the Restatement (Second) of Torts when it came to urban and residential properties.

Specifically, the appellate court disagreed with the finding that the tree’s healthy condition didn’t pose an unreasonable risk of harm to neighboring landowners because it wasn’t an unhealthy or dead tree – something that past cases have focused on. This is the first case in which the Court of Appeals has analyzed the natural rule exceptions in the context of a healthy tree, and the judges found no difference.

“As noted in Marshall, in urban or residential areas, placing a duty on the landowners to inspect his or her property and take reasonable precautions against dangerous natural conditions is not an undue burden,” Judge James Kirsch wrote. “Property lots in urban or residential settings are much smaller in size – putting neighboring landowners much closer in proximity – and thus, the burden of time and money to inspect and secure trees on those properties is relatively minor compared to the potential damage that could result from a defective tree. As such, we hold that an urban or residential landowner has a duty to exercise reasonable care to protect neighbors from the risk of personal injury or property damage caused by a tree growing upon the landowner’s property. Accordingly, the trial court erred in concluding that the natural condition rule of the Restatement bars the plaintiff’s recovery.”

The Indiana Supreme Court hasn’t addressed this issue specifically since it ruled on a natural conditions rule issue in 1991, and the justices denied transfer on Marshall in December.

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  1. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  2. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  3. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  4. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

  5. The small claims system, based on my recent and current usage of it, is not exactly a shining example of justice prevailing. The system appears slow and clunky and people involved seem uninterested in actually serving justice within a reasonable time frame. Any improvement in accountability and performance would gain a vote from me. Speaking of voting, what do the people know about judges and justice from the bench perspective. I think they have a tendency to "vote" for judges based on party affiliation or name coolness factor (like Stoner, for example!). I don't know what to do in my current situation other than grin and bear it, but my case is an example of things working neither smoothly, effectively nor expeditiously. After this experience I'd pay more to have the higher courts hear the case -- if I had the money. Oh the conundrum.

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