Q: I have a incredibly significant pine tree on my property adjacent to the town sidewalk. The tree is town-owned but I am liable for servicing, which I have done consistently. Several months ago, a major pine cone fell from the tree and broke a neighbor’s windshield. It’s not the very first time this has transpired. The existing neighbor is now demanding I pay for the price tag of the windshield (he even requested me to lie to my house owners insurance policies firm and not mention that the tree is city-owned. I refused. My response to him was that he assumed a threat by parking below the tree, as there are pine needles and cones littering the road. I suspect he is arranging to sue me on your own in compact statements court docket. Am I proper in asserting assumption of the risk on his portion? And how do I deal with him not adding the city as a defendant?
A: First, a query: Did this human being know pine cones slide from the tree (you say “it’s not the very first time this has happened”)? If so, that may perhaps provide an argument to decrease any award to him. Study implies that the owner of the true home is the main party liable under the circumstances, which I feel (dependent on what you have written) is the town. Hence, if you have not advised the metropolis of the potential assert, give very careful assumed to executing so now. Promises towards the metropolis frequently have a six thirty day period deadline — you must submit the declare 6 months from observe or it will be deemed as well late. Accurate, there is no formal declare nevertheless, but the town could argue you have awareness of the incident and should really have by now place them on discover. Granted, the town could properly deny responsibility, at minimum initially, so if you get sued, you really should counter-sue the town just make sure to give well timed discover beforehand, and if the town does not reject the declare in thanks course, it is deemed turned down normally in 45 times.
You check with about assumption of possibility, which most generally applies to inherently unsafe functions (these types of as snowboarding, rock climbing, horseback using or soccer). In all those scenarios, main assumption of the chance can be a full defense, but basically parking one’s car — even along a tree-crammed region — would not appear inherently risky. It is lawful to park there, ideal? The conditions may, nonetheless, give increase to secondary assumption of the possibility. This likely defense occurs when you have a obligation to the other get together, but he or she goes ahead in spite of your breach. What would be valuable for your reasons is composed evidence that you took safety measures with the trees. Nonetheless, the automobile owner could argue you should have posted a warning (some thing else for you to look at carrying out now) however, if the auto owner was aware of falling pine cones there, comparative fault may perhaps occur to minimize any award to him.
Ron Sokol is a Manhattan Seashore legal professional with a lot more than 35 a long time of working experience. His column, which seems in print on Wednesdays, offers a summary of the law and ought to not be construed as legal tips. Email inquiries and comments to him at [email protected]