Thank you to Dechert LLP for updating the below content with North Carolina information.
3.1 – Overview
Disaster damage from the heavy rains, ferociously high winds, and flooding manifests in a number of ways. Not uncommonly, objects such as furniture or heavy tree limbs go flying, or trees are uprooted by the storm. This chapter addresses questions regarding those situations in which high winds, heavy rains, or flooding cause uprooted trees, tree limbs, and other like objects to damage persons or property.
3.2 – Most Common Issues/Questions
My neighbor’s tree fell into my yard during the disaster. It smashed my fence and took out my landscaping. Can I make my neighbor pay for the fence repairs and landscaping?
What if my neighbor’s tree hits my house?
No trees came down during the disaster, but I’m sick of picking up limbs out of my yard from my neighbor’s tree, and I’m worried about the next storm—that tree looks awful. What can I do?
Can I make my neighbor trim the tree branches that hang onto my property?
My neighbors are freaking out after the disaster and want to cut down all their trees. They provide the only shade in my yard. Can I stop my neighbors?
My neighbors had a lot of trees fall on their property. They keep running a chainsaw long after I’ve put my kids to bed. Can I stop them?
The fence between my property and my neighbor’s property is down. Who has to pay to replace it?
3.3 – Summary of the Law
As a general rule, compensation may not be obtained for losses, damage, or harm suffered as a result of an act of God, which means an occurrence due directly and exclusively to natural causes without human intervention and which no amount of foresight, pain or care, reasonably exercised, could have prevented. This definition includes natural disasters. As one court put it, Where injuries result from an act of God, no one is responsible…” (Lawrence v. Yadkin River Power Co., 190 N.C. 664, 130 S.E. 735, 738 (1925)). There are, however, at least two situations in which that general rule may not come into play.
First, damages suffered by a homeowner or tenant due to high winds or water may be covered by an insurance policy. (Damage caused by flooding is covered by a separate flood insurance policy sold by your insurance agent and overseen by FEMA as part of the National Flood Insurance Program.) The first question, then, is whether the homeowner or tenant has an insurance policy. If so, the critical inquiry is whether the policy covers losses due to high winds and water. A policy may exclude coverage for any losses from disasters all together or may cover only some types of losses and not others. It is common for policies to include coverage for windstorm, but exclude from coverage losses caused by high water, “whether driven by wind or not” (Wood v. Michigan Millers Mut. Fire Ins. Co., 245 N.C. 383, 384, 96 S.E.2d 28, 29 (1957); Vestal v. Glens Falls Ins. Co., 146 F. Supp. 494, 495 (E.D.N.C. 1956), aff’d, 244 F.2d 78 (4th Cir. 1957); Firemen’s Ins. Co. of Newark, N.J. v. Senseney, 250 F.2d 130, 131 (4th Cir. 1957)). In one case, that language prompted arguments as to whether damages were caused by high water or wind from a hurricane (Vestal, 146 F. Supp. 494, 495).
Second, the “act of God” doctrine applies only where the natural disaster or similar act of God is the sole or exclusive cause of the damages. (See Olan Mills, Inc. of Tenn. v. Cannon Aircraft Exec. Terminal, Inc., 273 N.C. 519, 525, 160 S.E.2d 735, 740 (1968) (“The term ‘act of God’ is used to designate the cause of an injury to person or property where such injury is due directly and exclusively to natural causes without human intervention, and could not have been prevented by the exercise of reasonable care and foresight….”)). Thus, it does not apply to situations in which negligence has been a contributing cause of the damages. This is so, whether or not the person who is negligent could have reasonably foreseen the disaster or its force. As the North Carolina Supreme Court stated, after a land owner sued to recover damages from a fire initially started by lightning, but spread due to dry brush and grass in the defendant’s right of way on plaintiff’s land,
It is universally agreed that if the damage is caused by the concurring force of the defendant’s negligence and some other cause for which he is not responsible, including the act of God, or superior human force directly intervening, the defendant is nevertheless responsible, if his negligence is one of the proximate causes of the damage. It is also agreed that if the negligence of the defendant concurs with the other cause of injury, in point of time and place, or otherwise so directly contributes to the plaintiff’s damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force, which, concurring with his own negligence, produced the damage (Lawrence, 190 N.C. 664, 130 S.E. 735, 738 (1925) (emphasis added)).
That court found that “[i]f the right of way beneath the tower had been free of inflammable matter, the molten mass and fragments of the shattered insulator [from which the spark originated] would have quickly cooled, and no harm would have resulted to plaintiff” (Id. At 739). Whether the lightning had been foreseeable did not matter, it was enough that lightning was a possibility which could cause “heated masses of metal” to drop onto inflammable material, causing a fire (Id.). In that regard, the failure to take steps to remove, or at least secure, a diseased or dead tree may well make a homeowner liable for damages if the tree is uprooted by a disaster and thereby damages neighboring property or persons (Rowe v. McGee, 5 N.C. App. 60, 66, 168 S.E.2d 77, 81 (1969) (“[W]here a landowner knows that he has a tree on his property which is in a dangerous condition and which is likely to fall and injure the property of an adjoining landowner, he has a duty to eliminate such danger.). Similarly, a failure to secure objects that can reasonably be expected to be swept up in a disaster is likely to give rise to liability (See Olan Mills, Inc. of Tenn. v. Cannon Aircraft Exec. Terminal, Inc., 273 N.C. 519, 529, 160 S.E.2d 735, 743 (1968) (where a defendant was found negligent for failure to secure a plaintiff’s plane during a storm, which resulted in damage)).
3.4 – Assistance Numbers
3.4.1 – Federal
Federal Emergency Management Agency (FEMA) www.fema.gov; 1-800-621-FEMA (3362) – If your home was damaged during a disaster and repairs are not covered by insurance, you may qualify for a FEMA grant to make it safe and livable. Structural repairs (roof, foundation, etc.) may be covered but not cosmetic repairs (shutters, carpet, etc.). FEMA encourages homeowners with damage to register so that an agent can be sent to assess the damage and determine what repairs will be covered. You can register online at www.DisasterAssistance.gov or by calling the FEMA number above.
Generally, FEMA requires private property owners to use their own resources to clean up debris from their property. Local government officials may set up various options to assist residents in collecting and disposing of debris after a disaster, including providing drop-off sites or a curbside collection program. There must be an immediate threat to life, public health, and safety to justify the removal of debris by a public entity, and this must be expressly authorized by State or local authorities. Private land owners should call (919)-825-3191 for information regarding debris removal operations in North Carolina. Outside of North Carolina, contact your state or local government. FEMA’s policy on removal of debris from private property is available online at: https://www.fema.gov/media-library-data/1465335317204-387ea71c5b3ae8f55577aaa32baa66ac/FactSheetDebrisRemoval2016.pdf
3.4.2 – State of North Carolina:
North Carolina Department of Insurance (“NCDOI”) – offers numerous services for consumers and insurers. NCDOI helps with locating insurance carriers, monitoring insurance fraud, and filing complaints. In addition, the Department of Insurance will issue important bulletins relating to disasters, post-disaster-claims handling, and victim assistance centers. Insurance-related complaints can be made to NCDOI via their website at http://www.ncdoi.com/Consumer/Request_Assistance_or_File_a_Complaint.aspx or by mailing the PDF form provided at their website to: N.C. Department of Insurance, Consumer Services Division, 1201 Mail Service Center, Raleigh, NC 27699-1201. For questions or assistance, contact the consumer helpline: 1-855-408-1212. See NDCOI’s website for various disaster resources: http://www.nchurriclaims.com/ and http://www.ncdoi.com/Consumer/Insurance_Information_By_Topic_-_Disaster_and_Recovery.aspx.
3.5 – Frequently Asked Questions
Q 3.1 – My neighbor’s tree fell into my yard during the disaster. It smashed my fence and took out my landscaping. Can I make my neighbor pay for the fence repairs and landscaping?
If the tree was healthy before the disaster and the storm’s high winds caused the tree to fall over and damage your property, then you cannot hold your neighbor liable. This was an “Act of God.”
However, if the tree was decayed, diseased, dead, or in an otherwise dangerous condition before the disaster, then you can hold him liable for damages. In this case, your neighbor was negligent in maintaining the tree. The tree posed an unreasonable risk of harm, and your neighbor had a duty to trim the branches or remove the tree before the storm to prevent it from falling over. “[W]here a landowner knows that he has a tree on his property which is in a dangerous condition and which is likely to fall and injure the property of an adjoining landowner, he has a duty to eliminate such danger (N.C.G.S. § 14-128). Home insurance generally covers this type of damage.
Q 3.2 – What if my neighbor’s tree hit my house?
Same as above. If the tree was healthy and it fell due to high winds during the disaster, your neighbor is not responsible. If the tree was in poor condition prior to the disaster, then your neighbor should have had the tree removed or taken other reasonable measures prior to the storm. The dispute is likely one over home insurance—if your neighbor is not responsible, then your insurance should cover; if it was your neighbor’s responsibility, then your neighbor’s insurance should cover you. As a practical matter, it may be easier to claim on your insurance and let your insurance company pursue any claim that may exist against your neighbor.
Q 3.3 – No trees came down during the disaster, but I’m sick of picking up limbs out of my yard from my neighbor’s tree, and I’m worried about the next storm—that tree looks awful. What can I do?
You can cut the limbs that grow onto your property, but you cannot kill the tree (N.C.G.S. § 14-128). The tree owner may have the responsibility for removing a dead or diseased tree prior to a storm, but you cannot take on that job yourself. Rather, you should inform your neighbor of the dangerous condition of the tree and request that they address the problem. If they fail to do so and you end up with damage (like the examples above), you will be able to recover damages from the tree owner. Ordinances and regulations vary by location. You should check with your local city government to determine if there is a tree ordinance that applies to your situation.
Q 3.4 – Can I make my neighbor trim the tree branches that hang onto my property?
No. You can trim them, but you cannot make your neighbor trim them. And if you trim them, it needs to be in such a way that it won’t kill the tree. Otherwise, if the tree dies, your neighbor could attempt to recover damages from you for trespass. This presumes the tree is healthy. Also, you can only trim the branches up to the boundary line. If the tree is dangerous, then you can call your local city government to determine if there is a tree ordinance that applies to your situation.
Q 3.5 – My neighbors are freaking out after the disaster and want to cut down all of their trees. They provide the only shade in my yard. Can I stop my neighbors?
No. The trees belong to your neighbors and thus are their property to do with as they wish. It does not matter if the trees are your shade or if the trees’ branches go over into your yard. Although, if the tree is on the property line, you may have an ownership interest. Additionally, there may be restrictive covenants or a tree ordinance pertaining to your subdivision that protects the trees if they are a certain size. Check with your Homeowners’ Association for any applicable restrictive covenants. You can also check with your local city government to see if there are any city-wide ordinances regarding tress.
Q 3.6 – My neighbors had a lot of trees fall on their property. They keep running a chain saw long after I’ve put my kids to bed. Can I stop them?
It depends. Most cities have a noise ordinance. A typical chain saw has a volume of around 100 adjusted decibels (dB(A)). City ordinances tend to limit noise to levels around 65 – 85 dB(A) during daytime hours and around 50 – 60 dB(A) at night. Daytime hours are generally between the hours of 7 a.m. and 10 p.m. Nighttime hours are generally between 10:01 p.m. and 6:59 a.m. the following day (Hours and times vary by city. You should check with your city government or search “noise ordinance” at your city government’s website for specific times and noise levels permitted.). But there is generally an exception for “emergency work,” which is likely to include work designed to protect the public health and safety or work performed by city workers or contractors in a right-of-way or utility easement (Charlotte, NC, Code of the City, Ch. 15, Art. III (1997)).
City ordinances vary when it comes to noise level and the types of activities permitted. In Charlotte, specifically, the city ordinance prohibits chain saws from being used between the hours of 9 p.m. and 7 a.m. in any area of the city zoned for residential purposes (Id. at §15-68(a)(3) and §15-68(b) (noting the time restriction applies to garage machinery and other domestic tools which create sounds exceeding 60 dB(A))).
So if you live in Charlotte and your neighbor is using the chain saw after 9 p.m., your neighbor may be violating the noise ordinance. The analysis is the same even if your neighbor is starting a new business selling firewood from all the downed trees brought to the property. That said, you are probably best served by talking to your neighbors and asking them to limit the hours they are cutting rather than trying to take them to court for the noise. If you have a concern about noise levels, you can check with your local government to see if a similar noise ordinance is in place.
Q 3.7 – The fence between my property and my neighbor’s property is down. Who has to pay to replace it?
If a fence is located entirely on your neighbor’s property, then the fence is considered to be the exclusive property of your neighbor. Consequently, unless you have entered into an enforceable agreement with your neighbor or there are certain deed restrictions mandating fences to be erected and which spell out responsibilities among neighbors, you are not obligated to fix the fence if it is on your neighbor’s property. Nor can you compel your neighbors to fix the fence if it is on their property. On the other hand, if the fence is on your property, it is your responsibility, though your neighbor cannot compel you to replace the fence. If the fence was originally installed on your neighbor’s property but fell on to your property as a result of the storm, you can remove the fence from your property in the same way you can move trees and limbs from your property.
If the fence is on the boundary line between both properties, both property owners own the fence if they both use it, and thus would share the cost of repairing and replacing the fence. Every state interprets “use” differently, but there are three main definitions:
1. Occupancy – use of the land up to the fence.
2. “Join” for use – the attachment of another fence to the boundary fence.
3. Entire enclosure – the property owner’s entire property is enclosed by the attachment of other fencing to the boundary fence.
Most state laws or local ordinances place responsibility for the maintenance of the boundary fences on the owners that use the fence unless an agreement indicates otherwise (Property Line and Fence Laws in North Carolina, Findlaw, https://statelaws.findlaw.com/north-carolina-law/property-line-and-fence-laws-in-north-carolina.html).