January 22, 2002
MUNICIPAL LIABILITY FOR FALLING TREES AND LIMBS
By: George Coppolo, Chief Attorney
You asked whether a municipality is liable when a tree it owns or is responsible to care for that is located near the side of the road, falls and injures someone. This office in not permitted to give legal opinions and this report should not be considered one.
No statute or court case makes a municipality liable for damages caused by a falling tree or limb merely because it owned the land the tree was on or had the legal duty to care for it because it was near a road. But two laws establish the basis for attempting to make municipalities liable under certain circumstances.
One of these laws makes municipalities liable for damages to people or property caused by (1) the negligent acts or omissions of the municipality or its officers or agents acting within the scope of their employment or official duties, (2) negligence in the performance of functions from which the municipality derives a special corporate profit or financial benefit, or (3) acts that constitute the creation or participation in the creation of a nuisance (CGS § 52-557n).
The second law makes municipalities responsible for the care and control of all trees and shrubs that are entirely or partially within the limits of any public road or grounds (CGS § 23-59). This duty extends to limbs that overhang the limit of any public road or grounds. This statute is limited to trees and tree limbs within the boundaries of public roads or on public property. It does not otherwise extend to trees on private property. Our courts have interpreted this and related laws as giving municipalities the exclusive right to prune, remove, and care for these trees.
While we cannot anticipate all possible fact patterns, the most likely legal theories that could make a municipality liable for falling trees or branches under these laws are negligence and nuisance.
In order to make a municipality liable under a negligence theory, the injured party could allege (1) the tree or limb was in a dangerous or defective condition; (2) the municipality breached its duty to inspect, remove, or prune the tree or limb, or otherwise make the area safe; and (3) because of this failure the tree or limb fell and caused the injury. But, because municipalities and their officials and employees have statutory and common law immunity for acts requiring judgment or discretion, the injured person would also have to allege and prove that he was an identifiable victim in danger of imminent harm in order to win a lawsuit based on this theory.
In order to make a municipality liable under a nuisance theory, an injured party could allege that the tree or limb was in such bad shape that it constituted a nuisance. To recover under this theory, the injured party would also have to allege and prove that the municipality had created the nuisance by some positive act such as improper pruning, and not merely inaction such as the failure to inspect.
Whether an injured person would succeed with these legal theories would ultimately depend on the precise facts involved.
LIABILITY OF MUNICIPALITIES AND THEIR EMPLOYEES AND AGENTS
Statutes That Impose Liability
Except as otherwise provided by law, a municipality is liable for damages to people or property caused by (1) the negligent acts or omissions of the municipality or any of its employees, officers or agents acting within the scope of their employment or official duties; (2) negligence in the performance of functions from which the municipality derives a special corporate profit or pecuniary benefit; and (3) municipal
acts that constitute the creation or participation in the creation of a nuisance (CGS § 52-557n). But, a lawsuit for damages resulting from injury to a person or property because of a defective road or bridge must be filed only under the defective highway statute (CGS § 13a-149).
Except as otherwise provided by law, a municipality is not liable for damages caused by (1) acts or omissions of any employee, officer, or agent which constitute criminal conduct, fraud, actual malice or willful misconduct or (2) negligent acts or omissions that require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.
But neither a municipality nor any of its officers or agents acting within the scope of their employment or official duties are liable for damages resulting from (1) the condition of natural land or unimproved property or (2) the failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to the municipality, to determine whether it complies with or violates any law or contains a health or safety hazard, unless the municipality had notice of the violation or hazard or unless the failure to inspect or the inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances.
Duty of Tree Wardens to Care for and Control Trees and Shrubs
By law, municipal tree wardens have the care and control of all trees and shrubs located entirely or partially within the limits of any public road or grounds and within the limits of their municipality (CGS § 23-59). They do not have control over trees along state highways controlled by the transportation commissioner. They also do not have control over those in public parks or grounds that are under the jurisdiction of park commissioners. But if the parks commissioner asks in writing, the tree warden is also responsible for these trees and shrubs. Care and control extends to limbs, roots, or parts of trees and shrubs that overhang the limits of any such public road or grounds.
Under this law, whenever the tree warden believes the public safety demands the removal or pruning of a tree or shrub under his control, he may remove or prune it at the municipality's expense. Unless the condition of the tree or shrub constitutes an immediate public hazard, the tree warden must, at least 10 days before the removal or pruning, post a suitable notice on the tree stating his intention to remove or prune it.
LIABILITY BASED ON NEGLIGENCE
In order to recover under a negligence theory, an injured person must allege and prove (1) the defendant owed him a duty of care, (2) the defendant breached this duty, and (3) he was injured because of the breach.
Public Verses Private Duty
However, negligence lawsuits against a municipality are more difficult to win because municipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion (Elliott v. Waterbury, 245 Conn. 385, 411(1998).
In defining what is a governmental act, the court usually begins with the "public duty doctrine" which distinguishes public duties from so-called private duties. (Shore v. Stonington, 187 Conn. 147, 152 (1982); Gordon v. Bridgeport Housing Authority, 208 Conn. 161 (1988). If the duty is to the public, a failure to perform it, or an inadequate or erroneous performance, is a public and not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is to the individual, then a failure to perform it or to perform it properly, is an individual wrong and may support an individual action for damages (Leger v. Kelley, 142 Conn. 585, 589-90 (1955)). If the duty imposed on the public official is of such a nature that its performance will affect an individual differently from the way it affects the public at large and if the official is negligent in the performance of that duty, he is liable to that person (Roman v. Stamford, 211 Conn. 396, (1989)).
Few modern Appellate or Supreme Court cases deal with falling trees or limbs, and we could not find any cases from these courts that decided whether CGS § 23-59 imposes a public or private duty on municipalities. But in a recent case, these courts decided that a municipal charter provision that is similar to this statute imposes a public and not a private duty (Roman v. Stamford, 16 Conn. App. 213, 219-20, affirmed, 211 Conn. 396 (1989)).
The plaintiff was traveling in an automobile on a city street when a rotted pine tree fell from property owned by the city of Stamford and landed on the auto. He sued the city on the theory that the city has a duty to maintain and care for the trees. He further argued that this duty was created by a charter provision enacted by the city that required the parks commissioner to "provide for the care and control of all trees and shrubs within the limits of any public road. "
The court concluded that the duty to maintain and care for the trees within the limits of all public roads does not constitute a private duty because its performance would not likely affect anyone on the city streets differently from the way it affects the public at large.
Although neither the Appellate nor Supreme Court has decided this issue, trial courts have held that CGS 23-59 imposes a public duty (Amos v. Strictland, 1997 LW 176368 (1997); Dasilva v. Town of Wallingford, 2001 LW 219853 (Feb. 13, 2001)).
If a private duty is involved, an individual can bring a private action against the municipal employee. If a public duty is involved, however, further analysis of the type of public duty is necessary to determine whether a municipality could be liable.
Ministerial, Proprietary, or Discretionary Acts
If a public duty is involved, the issue of municipal liability may depend upon whether the specific act in issue was ministerial, proprietary, or discretionary. When municipalities are engaged in proprietary (profit-making) or ministerial activities, their actions are not considered governmental and, accordingly, they do not enjoy immunity from negligence resulting from such activities (Roman v. Stamford, supra, 16 Conn. App. 221; Elliott v. Waterbury, supra, 245 Conn. 411).
The hallmark of a discretionary act is that it requires the exercise of judgment. "Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. . . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action" (Gauvin v. New Haven, 187 Conn. 180, 184 (1982) (Colon v. City of New Haven, 60 Conn. App. cert. den. 255 Conn. 908 (2000); Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 167-68).
A few lower court cases have determined that the decision whether to prune, remove, or otherwise care for trees is a discretionary function. For example, in Amos v. Strickland, the court concluded that the state law requiring municipal tree wardens to care for trees imposed a discretionary duty (1997 WL 176368). In Doherty v. City of Ansonia, the court found that the decision by the superintendent of public works whether to prune, cut, or in any other manner provide for the care of the trees within his charge in the city of Ansonia was discretionary, and not merely a ministerial act (2001WL 14129179).
Exceptions to Immunity for Discretionary Acts
There are three exceptions or circumstances under which liability may attach even though a municipal employee's act was discretionary: (1) where the circumstances make it apparent to the public officer that a failure to act would be likely to subject an identifiable person to imminent harm; (2) where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; and (3) where the alleged acts involve malice, wantonness or intent to injure, rather than negligence (Colon v. City of New Haven, supra, 60 Conn. App. 178, 180-81; Evon v. Andrews, 211 Conn. 505).
No statute explicitly authorizes injured people to sue a municipality for failing to inspect, prune, or otherwise make trees safe. Nor is it likely that the tree-related actions or inactions of municipal officials would involve malice, wantonness, or the intent to injure. Thus the exception that might apply in a case involving a fallen tree or limb would be the "identifiable person/imminent harm" exception. For this exception to apply, the injured person must allege facts sufficient to support a finding both that he is an identifiable person and that he was subject to imminent harm. (Shore v. Stonington, supra, 187 Conn. 156). The term "identifiable person" applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims (Burns v. Board of Education, 228 Conn. 640, 646 (1994).
In grappling with this difficult issue, the state Supreme Court has held that the class of possible victims of an unspecified fire that may occur at some unspecified time in the future is not a group of identifiable people (Evon v. Andrews, 211 Conn. 507, 508). It also held that a person killed by an intoxicated driver 50 minutes after the driver was stopped and warned by a police officer was not an identifiable victim (Shore v. Stonington, 187 Conn. 156 (1982)).
Under the "imminent harm" aspect of this exception, any dangerous condition must be more than something that could have occurred at any future time or not at all and must not depend on a "wide range of factors" before the harm occurs. (Evon v. Andrews, 211 Conn. 508. ) The prospect of harm must be significant, foreseeable, and limited in duration and geographical area (Pruzycki v. Fairfield, 224 Conn. 101, (1998)).
In the context of cases involving injuries or damages caused by fallen trees or limbs, at least one trial court has held that an injured person would not be an identifiable person, or an identifiable class of foreseeable victims, if he was either a motorist or passenger in a vehicle or a pedestrian walking along a sidewalk who happened to be struck by a falling tree limb (Amos v. Strickland, supra, Superior Court, Docket No. 564328). According to the court, mere travelers on a particular road do not constitute identifiable persons or an identifiable class of persons.
But someone who owns a home near a rotted tree or limb might satisfy this test. In a recent case, a Superior Court judge refused to dismiss a case on governmental immunity grounds (Doherty v. City of Ansonia 2001 WL 1429179 (October 30, 2001). The homeowner claimed that he personally advised the appropriate town official of the dangerous condition of the tree on several occasions most recently five months before the tree fell on his home. The town denied that this warning took place but admitted that the tree was located within the city's taking line, was under the city's control, and that a municipal official was responsible for its removal.
To establish a nuisance claim, an injured person must prove that the condition he is complaining of has the natural tendency to create danger and inflict injury, that the danger was a continuing one, that the use of the land was unreasonable or unlawful, and that existence of the nuisance caused the injuries (Tomasso Bros. Inc. v. October Twenty-Four, Inc. , 221 Conn. 194, affirmed, 230 Conn. 641). A nuisance describes an inherently dangerous condition that has a natural tendency to injure people or property (Quinett v. Newman, 213 Conn. 343).
The defense of governmental immunity is not available to a municipality in a lawsuit where the plaintiff alleges the municipality created and maintained a nuisance. Thus it is possible to recover damages from a municipality in the exercise of its governmental function if the injuries arise out of a nuisance the municipality creates (Dingwell v. Town of Litchfield, 4 Conn. App. 621 (1985); Connecticut Law of Torts, Sec. 133 Liability of Municipality Under Theory of Nuisance).
In one case, a person injured while diving off a diving board over four feet of water maintained in a public swimming pool was allowed to recover from the city that had created and maintained the swimming pool (Hoffman v. City of Bristol, 13 Conn. 386). In another case, a town-
maintained public dump 200 feet from a row of public buildings on a public highway had frequently been the site of smoldering fires and had been condemned as a fire hazard by the town fire marshal (Marchitto v. West Haven, 150 Conn. 432).
To maintain a lawsuit based on nuisance against a municipality, a plaintiff must prove that the municipality, by some positive act, intentionally created and maintained the conditions alleged to constitute a nuisance ((Elliott v. Waterbury, at 421; Dasilva v. Town of Wallingford, 00436015, (2001); Wolfe v. Town of Branford, 22 Conn. 239).
Thus, to sue a municipality for a nuisance, a plaintiff must prove that the municipality intentionally created the conditions alleged to constitute a nuisance. The fact that a tree was in a state of disrepair and was overgrown, diseased, infested, or insect ridden so as to endanger those individuals in and about its area is probably not enough to satisfy the positive act requirement.