Tree and Brush Liability
By Tim Baxter, Road Safety and Loss Prevention Specialist
Trees and brush growing on county rights-of-way and private property adjacent to county roads continue to cause significant liability risks to NIRMA member counties. The prospect of liability can follow when trees/limbs and brush block visibility of oncoming traffic, cause snow drifting problems, fall or blow down in high winds and obstruct roads or hit motorists’ vehicles, block visibility of traffic signs, etc. Most of these issues on county rights-of-way can be easily resolved with a good tree and brush removal policy and program.
But NIRMA unfortunately also sees claims that arise directly from member county road department employees’ efforts to cut trees and brush on private property to remove obstructions and improve sight distance. Such claims present a different kind of danger than the typical accident claim alleging a member county was negligent for failing to correct sight distance and other tree/brush issues on county rights-of-way. The risk of such claims may be unexpected or easily overlooked.
For example, in one instance, a member county sought permission of a private landowner to cut trees on private property for the purpose of curing sight distance problems, and the road workers ultimately took different and more trees than the landowner contemplated. The lawsuit in that instance was ultimately limited to an inverse condemnation cause of action. But there is an exclusion in the NIRMA coverage agreement for an inverse condemnation claim, and a dispute centering on the valuation of the cut trees is still pending in the Nebraska appellate court system, with thousands of dollars expended by the county on legal defense costs. Other similar scenarios can give rise to different causes of action such as trespass, negligence, and deprivation of due process rights, and NIRMA has processed claims arising out of facts like these in other member counties. Expert witnesses are often an additional cost involved in such a claim.
This type of claim is filed way too frequently and should serve as a reminder that the proper steps should be taken before entering private property and cutting trees and brush.
The very first priority of any road department, once it has identified that certain trees and brush are a safety issue, is to determine if said trees and brush are on private property. This is done by finding or establishing county right-of-way. The assistance of a surveyor is often needed.
If trees and brush are outside county right-of-way, the following steps should be followed:
- Make personal contact with the landowner, explaining the county’s desire to improve sight distance or whatever the problem with the trees and brush may be. Explain to the landowner that Nebraska State Statutes §39-1812 may impose a duty for the landowner to correct the problem. Explain to the landowner the safety concern and that he/she may be sued and face potential civil liability if an accident occurs that can be directly traceable to his/her failure to remove the obstructing trees or brush. Document the date, time and details of the discussion with the landowner, and any agreement reached for the landowner to remove the trees/brush, including a deadline for doing so.
- If the landowner does not agree to remove the trees/brush, or neglects to do so in a timely manner, the County’s duty to perform the work itself is triggered. The County may fulfill its duty in one of two ways.
Option 1: in some instances, the County can obtain written permission. If the County is able to obtain permission, it must be reduced to writing, with full explanation of the exact location where the trees and brush will be cut and piled, and ideally a description of the type, size, and number of trees to be taken. The landowner should be required to sign off on the written permission. Good communication with the road workers is essential to make sure that permission is not exceeded. If the landowner does not want the county to remove trees and brush on private property, THEN DO NOT DO IT, and proceed with the steps in Neb. Rev. Stat. §39-1813 instead.
Option 2: the County can follow the steps in Neb. Rev. Stat. §39-1813, starting with a simultaneous notice to the County Board and County Attorney. The County Attorney then sends a formal notice to the landowner and the matter is prosecuted as a public nuisance.
If right-of-way survey shows the trees and brush are on county right-of-way:
- Contact the adjacent landowners and explain the need of the County to remove said trees and brush. This goes a long way in developing good public relations with the taxpayers. Such reasonable advance notice to the landowners is also required under Neb. Rev. Stat. §39-301 before the County can remove any obstruction, so that costs of such removal can potentially be covered by the County in a subsequent county court action. Document any interaction with adjacent landowners’ and include before and after photographs, should a problem arise so you can defend your actions in tree and brush removal claim, should one be filed.
Please contact me at tim@nirma.info or call 402-310-4417 if you have any questions. Be Safe.
Road/Bridge Sign and Flood Workshops are scheduled across the state in 15 different locations beginning January 14 in Sidney and ending February 27 in Fremont. For questions on training call Tim at
402-310-4417.
