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Tree Liability Risk: The Duty of Care Owed to Persons Who May Be Harmed by Trees
Question: What are the legal liabilities for tree maintenance in Ontario?
Answer: In Ontario, property owners must ensure their trees do not pose a danger to others, as codified in the Occupier's Liability Act, R.S.O. 1990, c. O.2. Liability arises if owners or contractors knew, or should have known, about risks and failed to address them, as highlighted in Hallok v. Toronto Hydro Electric, 2003 CanLII 8519. For more information on protecting yourself from legal repercussions, contact Lo Greco Law today.
Liability Involving Tree Maintenance
The value and benefits of trees are often overlooked and the potential liability risks associated with trees are often underestimated or misunderstood. It is important for owners, contractors, and other individuals to take due care of trees so to minimize the potential for trees to cause injury or damage and thus to minimize the potential liability risks.
The Law
Duty of Care
The basic principles of common law, particularly negligence and the legal test regarding duty of care as founded within the Donoghue v. Stevenson case (a general principles case rather than tree specific case), prescribe that property owners owe a duty to ensure that other persons and the property of others persons is reasonably safe. In Ontario, these duties are also codified the Occupier's Liability Act, R.S.O. 1990, c. O.2, whereas it is said:
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
Owners of trees, or others responsible for trees (such as hired maintenance contractors), generally face liability only when it was known, or constructively known, that a tree failure risk was present and the owner (or others) failed to properly tend to the tree. In this way it can be thought that the injury or damage was a result of delay in caring for the tree rather than the result of risks inherent in a tree. Essentially, the negligent failure to maintain is a man-made risk rather than a natural tree risk. On the point of liability for failure to maintain trees, such was addressed within the case of Hallok v. Toronto Hydro Electric System Ltd., 2003 CanLII 8519, wherein it was said:
[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).
As such, it seems that knowledge, or constructive knowledge, of a dangerous condition is a requirement of liability for negligent maintenance of trees. Note that "constructive knowledge" is knowledge which the law deems a person ought to have based on reasonableness. If a reasonably diligent person would know of a dangerous condition this is "constructive knowledge" and proving actual knowledge becomes unnecessary. Constructive knowledge is often much easier to prove than actual knowledge. As an example, following a severe storm, a court may deem that reasonably acting property owners would inspect trees for broken branches among other dangerous conditions. In this regard, it is important to note that intentionally avoiding the inspection of trees, among other things, and thereby choosing to remain ignorant of a dangerous condition may be deemed an act from which constructive knowledge is imposed.
Conclusion
The owners of trees, or those entrusted with the care and maintenance of trees on behalf of the owners, owe a duty of care to reasonably ensure that the trees are maintained. If a person becomes injured or property becomes damaged by a tree that was improperly maintained, liability for the injury or damage may arise.