Hurricane Winds in the Midwest Spur Questions of Premises Liability and Damage Control

The morning after the derecho storm devastated the Midwest, thousands of Iowa residents woke up to a sea of downed tree limbs splayed where their grassy lawns used to be. Some residents weren’t as lucky—scratching their heads while gazing up at an adjoining landowner’s hundred-year-old oak protruding out of their master bedroom.

Who is responsible for the damage? Most likely it is the homeowner sustaining the damage.

Generally, only in cases of the tree owner’s negligence will they be held liable in tort. A neighbor is probably only liable if his or her action or inaction regarding the tree was a substantial factor in causing the property damage and the danger of the harm was foreseeable. Was the tree’s downfall caused by the homeowner’s failure to inspect and resolve the hints of tree rot? Was the tree positioned in a manner making it likely that a typical summer storm would blow a limb onto the neighbor’s garage? Are the homes located in an urban or rural area? Was the storm that caused the tree to fall one of a typical magnitude? These are just some of the questions one would ask in assessing the grounds for a negligence action.

Typically, and especially with damage caused by storms of a derecho’s magnitude, such property damage would likely not be substantially caused by the tree owner’s actions or inactions, but rather a very unfortunate and unforeseeable circumstance.

In simple terms, what does this all mean? Generally, property owners who sustained damage in the derecho probably are responsible for the damage to their property – even if caused by their neighbor’s hundred-year-old oak. Thankfully, most insurance policies should cover the damage. Typically, most lenders will require that property insurance policies to include the lender as a payee and are held by the lender.

It is important to note that nearly every single insurance policy includes a notice provision requiring the insured to give notice of damage within a certain specified timeframe. Giving this notice is of utmost importance. Property owners who sustained damage should immediately begin inquiring with their insurer on the potential of a claim. Similarly, lenders who have a mortgage on damaged real estate should start taking stock of damaged properties and should ensure that the property owner or the lender is taking proactive steps to obtain any potential proceeds necessary to return the property back to the state it was in prior to the derecho.

Any lender that has secured real estate in areas that sustained damage during the derecho should be actively monitoring the extent of the damage. If there are any issues with delay in giving notice to an insurer, lenders should contact an attorney at Dickinson, Mackaman, Tyler & Hagen P.C. as soon as possible.