HomeMy WebLinkAboutPlanning 2018-01-11 Item 4 - TMC 18.54 Tree Regulations Update - Attachment F: Memo from Assistant City Attorney Ann Marie Soto8. Turpin
. Soto
Kim Adams Pratt
1. Kenyon
Eileen s`'1. Keller
iiNary L. Graber
K. ra R. Comeau
TO: Planning Commission Members
Carol Lumb, Senior Planner
FROM: Ann Marie Soto, Assistant City Attorney
DATE: January 2, 2018
RE: Tree Liability
Doug F. Mosich
Shelley M. Kerslake
3967 _ 20
This memorandum addresses general liability issues related to trees abutting the right-of-
way in light of the City's pending review of tree code amendments.
A. Private Property.
The general rule is that a property owner is liable for damage caused by trees, and their
roots, which extend onto the private property of another. Property owners have a duty to protect
abutting private properties from encroachments and damage caused by such encroachments. See
Forbus v. Knight, 24 Wn.2d 297, 313 (1945). To that end, an abutting owner will likely be
found liable for tree root damage to a sidewalk resulting from trees on their property, but
adjacent to the right-of-way line. See Rosengren v. City of Seattle, 149 Wn. App. 565, 575
(2009) ("an abutting land owner has a duty to exercise reasonable care that the trunks, branches,
or roots of trees planted by them adjacent to a public sidewalk do not pose an unreasonable risk
of harm to a pedestrian using the sidewalk").
B. Street Trees.
As a preliminary matter, cities generally have only an easement interest in right-of-way
and do not own streets and sidewalks. The mere fact that a tree is in the improved portion of a
right-of-way does not make it a tree for which a city is responsible. Thus, traditionally, abutting
property owners may plant, maintain, and remove trees in the planter strip, and a municipality
cannot remove such trees unless they are a hazard or a nuisance. See Shaw v. City of Yakima,
183 Wn.2d 200 (1935).
However, municipalities, such as Tukwila, often require regular maintenance of trees and
permits for tree removal, and sometimes require planting and maintenance of trees in connection
with development. Where the tree is planted and maintained by the city (or planted at the behest
Attachment F
Kenyon Disencl, PLLC The Municipal Law Firm I I Front Street South Issaquah, WA 98027-3820 Tel: (425) 392-7090 Fax: (425) 392-7071 www5elyondisend.com
of the city in connection with development), then the city may be potentially liable depending on
the specific facts. On the other hand, a city would not likely be liable for damage caused by
roots from a tree in the right-of-way if the city did not plant and does not maintain the tree.
Likewise, municipalities have a duty to provide reasonably safe roads for the public to
drive upon. Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d 780, 788 (2005). Whether a
municipality breaches this duty depends on the answers to factual questions: Was the road
reasonably safe for ordinary travel, and did the municipality fulfill its duty by making reasonable
efforts to correct any hazardous conditions? Thus, the Courts have held that a municipality has a
duty to take reasonable steps to remove or correct for hazardous conditions that make a roadway
unsafe for ordinary travel, including conditions which are not present in, but are adjacent to, the
roadway, and this duty explicitly includes removing or correcting hazardous conditions created
by roadside vegetation. Wutrich v. King County, 185 Wn.2d 19, 27 (2016).
In summary, with respect to liability for street trees, the following questions will likely
come into play: (1) who planted the tree, (2) who is responsible for maintaining it, and,
specifically for road hazards, (3) was the road reasonably safe for ordinary travel, and (4) did the
municipality fulfill its duty by making reasonable efforts to correct any hazardous conditions?
Please feel free to contact us if you have questions or need further information.
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