Yes No Share to Facebook
Tree Liability Risk: The Duty of Care Owed to Persons Who May Be Harmed by Trees
Question: Who is liable for damages caused by falling trees in Ontario?
Answer: In Ontario, property owners and those responsible for tree maintenance must ensure trees are safe. Liability for damages occurs if it is known, or should have been known, that a tree posed a risk, but proper care was not taken (Occupier's Liability Act, R.S.O. 1990, c. O.2). Ignorance of dangerous conditions after events like storms may result in liability. For tailored legal advice and support, contact us today.
Liability Involving Tree Maintenance
Although trees are extensively found throughout our urban and rural landscape, the value and benefits of trees are often taken for granted. Additionally, the potential liability risks are often unappreciated or misperceived. Owners and contractors, among others, should carefully heed the potential liability risks arising from the ownership, care, or control, of trees.
The Law
Duty of Care
Property owners have a duty to ensure that other people and the property property of other people are reasonably safe from harm arising from the negligence of a property owner. Such a duty in law was established within the general principles case of, among others, Donoghue v. Stevenson, which established the legal test for duty of care within the basic principles of negligence law. In Ontario, such a duty of care is also codified per the Occupier's Liability Act, R.S.O. 1990, c. O.2, wherein it is stated:
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
Tree owners, or other persons who are hired to provide the care and maintenance of trees on behalf of the owners, are prescribed by law with a duty of care to reasonably ensure that the trees are maintained in a safe condition. If a person becomes injured or if property becomes damaged by a unreasonably maintained tree, liability may arise.
