Tree Liability and Best Practices
Presented By:
Kimberly Y . Chin, Esq.
City of Fairfield
Tree & Sidewalk Task Force
October 24, 2019
What Trees Can Cause Liability for the
City?
• Trees that the City own, maintain, or control
• This could include:
• Park Trees
• Trees along streets, including medians
• Trees in City easements
• Trees on private property to the extent that they affect property that the City owns, maintains, or controls
• Ex. Sidewalks, streets
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2 Dangerous Condition of Public Property
Govt. Code § 835
Plaintiff must prove the following elements:
1. The public entity owned or controlled the property at the time of the injury
2. Public property was in a dangerous condition at the time of the injury
3. The injury to plaintiff was legally caused by the dangerous condition
4. The kind of injury that occurred was reasonably foreseeable as a consequence of the dangerous condition
5. Either:
• The dangerous condition was created by a public employee’s negligent or wrongful act or omission within the scope of his/her employment
OR
• The public entity had actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury Allen Glaessner Hazelwood & Werth
3 Dangerous Conditions and Trees
Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829:
City is not immune from liability for a tree that was on city land falling onto plaintiffs’ house which was on private land adjacent to city land.
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4 Inverse Condemnation
• United States Constitution – Fifth Amendment
• “… nor shall private property be taken for public use, without just compensation.”
• California Constitution, Article I, Section 19
• Property may not be taken or damaged for the public
without just compensation to the owner
5 Differences from T ort Causes of Action
• No tort claim necessary
• Three year statute of limitations
• Strict liability for public entities if plaintiff establishes elements
• California Code of Civil Procedure § 1260.040 permits a party to move for a ruling on a legal issue affecting the
determination of compensation (a.k.a. liability)
• Not entitled to a jury trial on any other determinations other than the issue of compensation
• BUT: Weiss v. People ex rel. Dept. of Transportation, et al. (2018) 20 Cal.App.5th 1156 held that C.C.P . § 1260.040 did not apply to inverse condemnation
• California Supreme Court agreed to review
• California Code of Civil Procedure § 1036: Attorney’s fees and expert fees may be awarded
6 Inverse Condemnation
A property owner may recover from a public entity for any actual physical injury to real property proximately caused by [a public] improvement as deliberately designed and
constructed ... whether foreseeable or not. Albers v.
County of Los Angeles (1965) 62 Cal.2d 250, 263–264
7 Public Project or Improvement
A public improvement is a project or use that involves:
1. A deliberate action by the state
• Requires deliberation by a public entity (a policy decision), not by an employee. Paterno v. State of California(1999) 74 Cal.App.4th 75, 88
2. Taken in furtherance of public purposes
• A “use which concerns the whole community or promotes the general interest in its relation to any legitimate object of government.” Bauer v. County of Ventura(1955) 45
Cal.2d 276, 284
8 Inverse Condemnation Causation
• The damage must be substantially caused by an inherent risk presented by the deliberate design, construction, or
maintenance of the public improvement. City of Oroville v.
Superior Court (2019) 7 Cal.5th 1091, 1105.
• The injury to property must be an “inescapable or
unavoidable consequence” of the public improvement as
planned and constructed. City of Oroville, 7 Cal.5th at 1108. 9 Inverse Condemnation and Trees
• Mercury Casualty Co. v. City of Pasadena (2017) 14
Cal.App.5th 917: A tree constitutes a work of public
improvement for purposes of inverse condemnation
liability if the tree is deliberately planted by or at the direction of the government entity as part of a planned project or design serving a public purpose or use, such as to enhance the appearance of a public road
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10 Tree Ordinance
• Similar to sidewalk ordinance – places maintenance
responsibility on adjacent property owners and creates a duty to third parties
• Jones v. Deeter (1984) 152 Cal.App.3d 798, 805: Should [the City] tire of its responsibility to care for the [trees planted on the parkway], this task may be passed on to
abutting owners under the procedure established by
Streets and Highways Code, sections 5600 et seq.
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11 Examples of Tree Ordinances
SANTA ROSA MUNICIPAL CODE § 13-32.010:
(A) The owner of a lot fronting on or adjacent to any portion of a street shall maintain any trees, shrubs, hedges or other landscaping along said street or within the street right-of-way adjacent to his or her property in such nondangerous condition that the trees, shrubs, hedges or other landscaping will not interfere with the public convenience or safety in the use of the streets and sidewalks. Said owners shall maintain such street trees so that there is a minimum eight-foot vertical pedestrian clearance from the top of the sidewalk and a minimum 13-foot vertical vehicular clearance from the top of the curb, to any part of a streettree. (B) For purposes of this section, maintenance of trees, shrubs, hedges and other landscaping includes but is not limited to: deep root watering, root pruning, installing root barriers, clearance and structural trimming, fertilizing, pest control, and removal of branches, leaves and other debris.
(C) Property owners required by this section to maintain trees, shrubs, hedges and other landscaping shall owe a duty to members of the public using public streets and sidewalks to maintain such trees, shrubs, hedges or other landscaping in a safe and nondangerous condition for users of the public streets and sidewalks. (D) If any property owner fails to maintain any adjacent trees, shrubs, hedges or other landscaping in a nondangerous condition as required by this section, and as a result any person suffers damage or injury to person or property, the property owner shall be liable to such person for the resulting damages or injury.
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12 Examples of Tree Ordinances
SAN JOSE MUNICIPAL CODE § 13.28.400:
A. The property owner of a lot or portion of a lot adjacent to or fronting on any portion of a street shall maintain and replace, if necessary, any street trees, shrubs, hedges or other landscaping adjacent to or fronting on the subject property in such condition that the street trees, shrubs, hedges or other landscaping comply with this chapter. Each property owner shall plant and replace any removed or otherwise missing street trees in accordance with the requirements of Sections 13.28.300 and 13.28.310.
B. A property owner required by this section to plant, maintain, and replace, if necessary, street trees, shrubs, hedges and other landscaping shall owe a duty to members of the public using streets to maintain such street trees, shrubs, hedges or other landscaping in a safe and nonhazardous condition for users of the streets. For purposes of this section, maintenance of street trees, shrubs, hedges and other landscaping includes, but is not limited to: watering, pruning, fertilizing, pest control, removal of branches, leaves, and other debris, weed abatement, and protection of the critical root zone.
C. A property owner required by this section to maintain any street trees, shrubs, hedges, or landscaping shall comply with the following:
1. Provide the necessary maintenance so that the street tree, shrub, hedge or landscaping is not in a hazardous condition or in a condition that will likely become a hazardous condition;
2. Provide a minimum eight-foot vertical pedestrian clearance from the top of the sidewalk and a minimum fourteen-foot vertical vehicular clearance from the top of the pavement, to any part of a street tree;
3. Provide adequate clearance for unobstructed pedestrian and vehicular view of all authorized traffic signals, traffic cameras, street lights, regulatory signs, street name signs, and other similar type of equipment or signs;
4. All maintenance shall be completed in accordance with the American National Standard Institute (ANSI);
5. Obtain a permit as required in Part 3 above.
D. If any property owner fails to maintain any adjacent street trees, shrubs, hedges or other landscaping in a nonhazardous condition as required by this part, and any person suffers damage or injury to person or property, the property owner shall be liable for all damages or injuries caused by the failure of the owner to maintain the adjacent street trees, shrubs, hedges or other landscaping in a non-hazardous condition.
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13 Best Practices
• Develop clear policies/procedures regarding:
• Which trees are maintained by the City v. Property Owners • Clearly define categories of trees and use those categories consistently
• Recommendation: At the very least, the City should not maintain trees that are not on its properties.
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14 Allen Glaessner Hazelwood & Werth
15 Best Practices Cont’d
• What maintenance the City will do v. Property Owners
• Removal procedures
• Determine what trees the procedures would apply to
• Planting procedures
• Determine what trees the procedures would apply to
• Acceptable trees list
• Policies/procedures can be in the form of an ordinance or written policy or both
• Consider adoption of a cost-sharing policy
• Preview any changes in maintenance responsibilities and communicate clearly and consistently with Property
Owners with regard to their maintenance
responsibilities
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16 QUESTIONS?
Kimberly Y . Chin, Esq.
[email protected]
180 Montgomery Street, Suite 1200
San Francisco, CA 94104
(415) 697-2000
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