Claim no. 295400
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Cound v. BPM Construction Ltd, 2008 NSSM 33
BETWEEN:
MARTIN COUND and LAURA COUND
Claimants
- and -
BPM CONSTRUCTION LIMITED
Defendant
REASONS FOR DECISION
BEFORE
Eric K. Slone, Adjudicator
Hearing held at Halifax, Nova Scotia on June 17, 2008
Decision rendered on June 23, 2008
APPEARANCES
For the Claimant self-represented
For the Defendants self-represented
BY THE COURT:
[1] The Claimants own a house which is adjacent to a vacant lot owned by the Defendant. During a severe wind storm on November 4, 2007, a tall evergreen tree on the Defendant’s land snapped and fell over onto the Claimants’ property, utterly demolishing a relatively new plastic shed.
[2] The Claimants are suing for the value of the shed, based on the original purchase price of $1,139.98.
[3] The Claimants contend that the tree became vulnerable to breaking and falling because the Defendant had cleared part of the lot, in advance of building a house thereon, which took away some of the shelter or cushion that had previously mitigated the effect of high winds. Ms. Cound says that she obtained this information from an (unnamed) arborist.
[4] The principal of the Defendant company explained that the trees had been left along the boundary of the property as a necessary buffer zone, as required by the municipality. He stated that he had no reason to believe that this tree, or any others, posed a danger.
[5] The photographs placed in evidence show that the tree appears to have just snapped about six feet from the ground.
[6] Neither party came to court legally represented or with any legal authority, although they both claimed to have been told by lawyers that their positions were correct. Both sides also cited what they had been told by their respective insurance companies.
[7] As a general matter, I would observe that the provisions in insurance policies do not necessarily state or reflect the law. Often insurance policies merely provide that the company will initially pay for a loss, leaving open the possibility of further proceedings to determine who eventually bears that loss. In other words, an insurer may be prepared to pay the claim but still pursue a claim for indemnity against the party that they believe to be legally responsible.
[8] It is not surprising that this type of event, namely a tree brought down by a windstorm, has occurred before and been the subject of court proceedings. In the reported Ontario case of Doucette v. Parent (1996) 31 C.C.L.T. (2d) 190 (Ont. Gen. Div.), the facts were quite similar to those here, although the extent of damage caused appears to have been much greater.
[9] The judge set out the facts in that case:
1 The parties to this action are the owners of residential properties in the Town of Sturgeon Falls. The yards of their properties immediately abut each other. On November 30, 1991, a large tree situate on the defendant's property snapped off in a wind storm. The tree fell across a fence constructed by the plaintiff close to the mutual lot line and caused damage to the fence, a snowmobile trailer and motor home owned by the plaintiff. The plaintiff's claim for damages is framed in negligence and in nuisance.
Facts
2 The tree was located in the defendant's yard about 5 feet from the fence. It measured between 60 and 75 feet in height and had a trunk that measured 43 inches in diameter at the base. James Lawrence is an arborist who testified for the plaintiff. He did not attend at the scene after the tree fell. Indeed, he first attended at the defendant's property in the fall of 1995, some 4 years after the tree fell. In his opinion, the tree in question was a Manitoba Maple. Jim Allsop is an arborist who testified for the defendant. He did not attend at the site until 2 weeks before trial, at which time he examined the remains of the stump in the ground. He was of the opinion that the tree was a Lombardi Poplar. I find that Mr. Allsop's opinion as to the specie of the tree is verified by photographs that were filed as exhibits. I therefore find that the tree was a Lombardi Poplar.
3 On November 30, 1991, the Town of Sturgeon Falls experienced a wind storm, the severity of which was not uncommon for that time of year. The tree snapped off about 5 feet above the ground and fell onto the plaintiff's property. The bottom 6 to 10 feet of the trunk was rotten. I find that there was nothing unusual about the wind storm. I also find that the tree broke off because of internal decay, and that the breaking of the tree was not caused by an Act of God.
[10] The Plaintiff in that case tried several legal theories to hold the Defendant responsible. Those theories were “negligence,” “nuisance” and the so-called “rule in Rylands v. Fletcher.”[1]
[11] Negligence would apply if the Defendant had reason to suspect that the tree was rotten or otherwise liable to snap. Nuisance would apply if the Defendant was using his property in some unnatural way, giving rise to unusual dangers. The Rylands v. Fletcher theory, deriving from a landmark 1868 case in the British House of Lords, holds a landowner strictly liable if something inherently dangerous that ought to be contained on his property “escapes” and causes harm. This latter theory has been used often against polluters or owners of exotic or dangerous animals, but may be applied, for example, to more innocuous substances such as water stored in large quantities.
[12] The action in Doucette failed on all counts. The reasons are lengthy. The headnote in the case reports summarizes the reasons:
A property owner can be held liable in negligence for failing to maintain a tree if the exterior of the tree provides sufficient warning signals. Liability in negligence will be found if a reasonable person would conclude that the tree needed attention. In the case at bar, nothing warned the defendant, as a reasonable property owner, of any danger.
The defendant was not liable for damages in nuisance, because the growing of the tree is a natural use of land that does not attract liability in nuisance. Under a second line of authority, the defendant's growing of a tree that showed minimal signs of disease was a reasonable use of the defendant's property. Upon the application of a third line of authority, the defendant's failure to act to remedy the diseased tree was reasonable in that the damage that occurred was not foreseeable, as only a few branches were without leaves.
[13] This case is the most recent Canadian authority directly on point, and it gives a thorough analysis of earlier cased from across the country and in the U.K.
[14] In the case here, just as in Doucette, there is nothing unusual about the existence of the tree or the use of the land as to attract nuisance or the Rylands principle. So the case could only succeed if there were negligence.
[15] I am unable to find that the Defendant had any reason to believe that the tree would be unable to withstand heavy wind. There was no evidence that the tree was diseased or damaged, and if it were that the Defendant ought to have known about it. Although the Claimants apparently spoke to an arborist, I did not have the benefit of his or her expert testimony. There are a lot of questions that such a person might have answered, had he or she done a thorough investigation of the tree and the surrounding area. Even the theory that partial clearing of the lot may have made the tree more vulnerable to breaking would not necessarily translate into negligence. I would have to be convinced that there was something clearly unreasonable about the Defendant’s actions to find negligence. A finding of negligence merely from partially clearing a lot could have significant ramifications, given how common an occurrence that type of action is.
[16] While I am entirely sympathetic to the plight of the Claimants, who woke up one day to find their shed demolished through no fault of their own, in the result, harsh though it may appear, I am unable to find any legal responsibility on the part of the Defendant, and the action must be dismissed.
Eric K. Slone, Adjudicator