Who is liable for cutting down my trees, my neighbor or their tree service?

If someone cuts down your trees without your permission, you’re a victim of a timber trespass. After assessing the damage, one of your first questions may be: who is responsible?

In many timber trespass cases, there are at least two potential “at-fault” parties. First, there is the person or company that actually cut the tree. This may be a tree service, logger, or other contractor. Second, there is the person that hired the individual or business which cut down the tree. Usually, this is the neighboring property owner: the next-door homeowner or business owner.

It is important to note that legal liability for timber trespass is not an “either/or” situation. Both defendants — the neighbor and their tree service, in a common example — may be found legally liable for all or a portion of the damages caused by a timber trespass.

The tree service or logger

With regard to the tree service or other person/company actually cutting the trees, state timber trespass statutes are clear that the person or entity actually cutting the trees have liability. The only exceptions are those included directly in the statute — for example, consent from the owner of the tree would obviously be a defense to liability. Otherwise, a contractor is not exempt from liability just because they made a “mistake” or were just “following orders” from a property owner. In other words, “liability is not based on fault.” Evans v. Mayer Tree Serv., Inc., 89 Mass. App. Ct. 137, 147 (2016). The Maine timber trespass statute, for example, specifically provides for a two-times multiplier on damages even when a trespass occurs “negligently or without fault,” while an “intentional” timber trespass subjects the perpetrator to triple damages.

The neighbor

Despite not physically cutting down the trees, however, the neighboring property owner typically will also bear liability. For example, Massachusetts courts have held that a hiring homeowner can be liable under the Massachusetts timber trespass statute for the actions of an independent contractor. Glavin v. Eckman, 71 Mass. App. Ct. 313, 316-17 (2008). Courts have reasoned that while the contractor may be the one actually cutting the trees, the hiring homeowner is the one who directs and controls the contractor’s activities. Id. The law therefore requires that a “landowner who intends to have timber cut on his land owes a duty to an adjoining landowner to ascertain the boundary line of the adjoining land with diligence and care.” Burris v. Krooss, 563 S.W.2d 875, 877 (Tex. Civ. App. 1978). “A failure to discharge this duty may subject the landowner to damages resulting from such failure.” Id.

Joint and several liability

The traditional common law rule is that where multiple defendants are liable for a single injury, the defendants are subject to “joint and several” liability. See e.g., Mihoy v. Proulx, 113 N.H. 698, 700 (1973). Joint and several liability means that any of the defendants is responsible for all damages. In other words, under the common law, if a tree service and a neighbor are both liable for cutting down a homeowner’s tree, each of them is responsible for 100% of the victim’s damages (obviously, the homeowner is not allowed to “double dip” — they can only collect up to the total amount of their damages). The principle of joint and several liability is important because in some cases one of the potential defendants does not have insurance coverage, has no assets, or is otherwise uncooperative. In those situations, the plaintiff tree owner may still be able to collect the full amount of their damages from the “available” defendant.

Oftentimes, whether to pursue one or both responsible parties in a timber trespass claim or lawsuit is a tactical decision. An experienced timber trespass attorney can help explain the laws of your state and the strategic factors to consider.

The attorneys at Welts, White & Fontaine, PC have helped property owners recover over one million dollars in timber trespass claims and lawsuits. If a neighbor, logger, or tree service cut down your tree, contact us for a free consultation.