If a Tree Falls on a House, Is the City Liable?

An insurer has succeeded in holding a Massachusetts city responsible for $40,000 in damages caused by a tree that fell from city property onto an insured’s home.

Citation Insurance Co. paid the homeowner’s damages claim and then sought reimbursement through subrogation from the city of Chicopee. After Chicopee declined to pay claiming it was immune from liability, the insurer sued, alleging negligence in the maintenance of the tree. A trial court sided with the insurer and now the state appeals court has also.

The tree fell on the home during a windstorm in February 2019. The homeowner sent a letter to the mayor of Chicopee, notifying the city that the tree fell on her property, causing damage, and further stating that “the damage could have been prevented by the exercise of reasonable care had the city acted diligently to remedy or guard against this unsafe condition.”

The court noted that the previous owner of the home had notified the city in 2013 that the tree was in poor condition and posed a danger to the home.

The city maintained that its decision whether to remove a tree is a discretionary function, and thus it was immune from suit under an exception in the state’s tort law. The city cited a provision in the Massachusetts Tort Claims Act for municipalities that exempts from liability “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function.”

The city also cited a city ordinance that provides that “the discretion and sound judgment of the Tree Warden alone determines whether a tree shall be removed.”

But the appeals court found that whether a function is a discretionary act exception is a question of law which turns on whether the public act at issue involves “policy making or planning” and is not determined by whether the public body itself chooses to define its actions as “discretionary.”

Citing past cases involving the discretionary function exception, the appeals court agreed with the lower court and the insurer that the exclusion does not apply to Chicopee’s claim. The court found that the decision whether to remove the potentially hazardous tree at issue did not involve “policy making or planning” as those terms are used in the case law. The decisions to place the tree where it was and to establish and fund the position of a tree warden to curate the trees might be considered “policy making or planning” because they involve allocating government resources and assigning government responsibility. “Imposing liability based upon those decisions might involve “usurping the power and responsibility of either the legislative or executive branch of government,” the appeals court stated.

However, that was not the case with the tree. “Here the city owns the tree, and the tree threatened a neighbor’s property. The city has established a tree warden to maintain its trees. The law of negligence establishes a basic duty to exercise reasonable care to avoid harming the property of others,” the three judge panel concluded.