Q: I have a very large pine tree on my property adjacent to the city sidewalk. The tree is city-owned but I am responsible for maintenance, which I have done consistently. Several months ago, a heavy pine cone fell from the tree and broke a neighbor’s windshield. It’s not the first time this has happened. The current neighbor is now demanding I pay for the cost of the windshield (he even asked me to lie to my homeowners insurance company and not mention that the tree is city-owned. I refused. My response to him was that he assumed a risk by parking under the tree, as there are pine needles and cones littering the street. I suspect he is planning to sue me alone in small claims court. Am I correct in asserting assumption of the risk on his part? And how do I deal with him not adding the city as a defendant?
A: First, a question: Did this person know pine cones fall from the tree (you say “it’s not the first time this has happened”)? If so, that may provide an argument to reduce any award to him. Research indicates that the owner of the real property is the primary party liable under the circumstances, which I think (based on what you have written) is the city. Thus, if you have not advised the city of the potential claim, give careful thought to doing so now. Claims against the city often have a six month deadline — you must submit the claim six months from notice or it will be deemed too late. True, there is no formal claim yet, but the city could argue you have knowledge of the incident and should have already put them on notice. Granted, the city may well deny responsibility, at least initially, so if you get sued, you should counter-sue the city; just make sure to give timely notice beforehand, and if the city does not reject the claim in due course, it is deemed rejected typically in 45 days.
You ask about assumption of risk, which most often applies to inherently unsafe activities (such as skiing, rock climbing, horseback riding or football). In those instances, primary assumption of the risk can be a complete defense, but merely parking one’s car — even along a tree-filled area — would not seem inherently risky. It is lawful to park there, right? The circumstances might, however, give rise to secondary assumption of the risk. This potential defense arises when you have a duty to the other party, but he or she goes forward in spite of your breach. What would be helpful for your purposes is written proof that you took precautions with the trees. Still, the car owner could argue you should have posted a warning (something else for you to consider doing now); however, if the car owner was aware of falling pine cones there, comparative fault may arise to reduce any award to him.
Ron Sokol is a Manhattan Beach attorney with more than 35 years of experience. His column, which appears in print on Wednesdays, presents a summary of the law and should not be construed as legal advice. Email questions and comments to him at firstname.lastname@example.org.
Source: Orange County Register