Ivancic .v. Olmstead 66 N.Y.2d 349 (1985)

Oct 23, 2018 | 0 comments

Oct 23, 2018 | Miscellaneous | 0 comments

Ivancic .v. Olmstead 66 N.Y.2d 349 (1985)
Ivancic .v. Olmstead 66 N.Y.2d 349 (1985)
Facts

The plaintiff sustained an injury during a windstorm by an overhanging branch from a tree on his neighbor’s property. He was working on his truck in his parent’s property. The defendant lived in the property adjoining that of his parents to the west side. A maple tree grew on the defendant land at the periphery separating the two properties. Branches of the tree grew and hanged over the plaintiff’s parent’s property. When the storm occurred the plaintiff was injured by a branch from the tree and sustained major injuries. He sued for negligence and trespass.

The jury in the trial court held in favor of the plaintiff awarding him a damages sum of $3,500. Consequently, both the defendant and plaintiff moved to set aside the verdict, the plaintiff on the ground that it was inadequate and for the defendant on the ground that the verdict did not correlate to the evidence before the court. The jury found the verdict to be a compromising one and set the matter for a new trial to cater for both issues presented.

Issue

On cross appeal the issue was if the evidence produced was competent and if the damages awarded were enough having the fact the defendant had knowledge of the defective tree.

Rule

The plaintiff offered no competent evidence to assert the defendant’s knowledge he has constructive notice of the alleged defect in the tree. No witness who had observed the tree prior to the fall had testified to have observed that there was need to alert passersby of the defect in the tree branches.

Application

For the concept of constructive notice to apply in respect of liability of falling trees, is that there is no duty to check all trees for defects or decay. Rather the defect itself must be visible for the landowner to take appropriate steps to prevent injury.

Conclusion

The action for trespass was dismissed since there was no evidence to show the defendant planted the tree and that of negligence dismissed with no costs for lack of enough evidence.