Key Points

  • The Sixth District held that, under McCain v. Florida Power Corp., Vaughan's complaint adequately alleged that USMI owed him a duty of reasonable care to keep a tree it knew was rotten from harming his adjacent property.
  • The court held that the Massachusetts rule, as adopted by the Third District in Gallo v. Heller and the Fourth District in Scott v. McCarty, applies only to healthy trees and does not shield an owner who knowingly leaves a rotten tree standing.
  • The court expressly declined to decide whether Florida law recognizes the Massachusetts rule or any other state's tree-liability rule, noting the question would turn on English law as of July 4, 1776, under section 2.01, Florida Statutes.
  • The court reversed the judgment on the pleadings and remanded, and it warned litigants not to assume the Sixth District will follow sister-court decisions without examining whether they are correct.

A Florida appeals court on Nov. 6 revived a homeowner's negligence suit against the neighboring landowner whose rotten oak fell onto his house. The court held that a landowner that knows a tree is decayed owes its neighbors a duty of reasonable care to keep the tree from harming their property.

The Sixth District Court of Appeal reversed a judgment on the pleadings entered for USMI Properties Five LLC. The company had argued that Florida law categorically shields landowners from liability for damage their trees cause next door. Judge Mize wrote for the unanimous panel, joined by Judge Pratt and Associate Judge D.K. Beamer, and the case returns to the Polk County circuit court.

The decision confines the Massachusetts rule, a doctrine adopted by Florida's Third and Fourth Districts that bars liability when a tree's branches or roots grow onto a neighbor's land, to healthy trees. The panel declined to say whether Florida recognizes the rule at all, and it warned litigants not to assume the Sixth District will follow its sister appellate courts.

According to the complaint, Richard Vaughan and USMI own adjacent properties that share a boundary line. In 2022, a large, rotten oak on USMI's land fell onto Vaughan's house, causing significant damage. The complaint alleged that USMI "knew that the tree was rotten for years prior to the tree falling into [Vaughan's] property," and that the tenant living on USMI's property had complained to the company several times about falling limbs. Vaughan claimed damage to his home and his home-based business.

USMI moved for judgment on the pleadings, a request that the court rule on the complaint and answer alone while taking the plaintiff's allegations as true. It argued that Gallo v. Heller, a 1987 Third District decision, and Scott v. McCarty, a 2010 Fourth District decision, bar liability for harm a tree causes next door, even when the owner knows the tree is diseased. Vaughan responded that those cases covered only healthy trees whose limbs or vegetation grow over a neighbor's land.

The trial court adopted USMI's position, summarily denied reconsideration and entered final judgment. Vaughan did not appeal a separate summary judgment against him on a negligence per se claim.

The panel started from McCain v. Florida Power Corp., the 1992 Florida Supreme Court decision that sets the test for when a common-law duty exists. McCain held that "a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others." Judge Mize wrote that "USMI does not dispute that knowingly maintaining a large rotten oak tree on its property foreseeably created a zone of risk of harm to its neighbors, and it is obvious that it did so."

That left USMI with a single argument: that Gallo and Scott carved out an exception to McCain. The court traced the Massachusetts rule to Michalson v. Nutting, a 1931 Massachusetts case in which roots from a neighbor's tree damaged a house's foundation and pipes. That court, quoting an 1881 New York decision, reasoned that "It would be intolerable to give an action in the case of an innoxious tree whenever its growing branches extend so far as to pass beyond the boundary line and overhang a neighbor's soil."

Judge Mize wrote that Michalson "involved a healthy tree, and the court's stated reasoning was expressly limited to healthy, or 'innoxious,' trees." The opinion added that "Numerous courts that have adopted the Massachusetts rule have made clear that it applies only to healthy trees," citing decisions from Missouri, New York and Kentucky.

Gallo and Scott also involved healthy trees. In Gallo, branches and roots cracked a driveway and walkway, damaged a roof and dropped leaves that gave the plaintiff's dog allergies. In Scott, the plaintiff cut back her neighbor's encroaching tree and sued for the cost. Neither decision, the panel wrote, indicated that the rule "protects a defendant that unreasonably allows a rotten tree to sit on his property until it falls over and causes harm on an adjoining property."

In a footnote, the court recorded that USMI's counsel conceded at oral argument that, under USMI's reading, such a defendant would also be "immunized from liability for any injuries or deaths caused by the falling tree."

The panel declined to decide whether Florida law recognizes the Massachusetts rule. Deciding that question "would require significant historical research," Judge Mize wrote, and would likely turn on whether English law recognized such an exception as of July 4, 1776, the cutoff a Florida statute sets for English law still in force in the state. Because neither party briefed the point, the court wrote, "we exercise our discretion not to decide this issue when it is not necessary to decide this case."

A footnote questioned Gallo's footing. It said the Third District "did not engage in any examination of the common law of England" before calling the Massachusetts rule "the rule at common law." The panel also concluded that none of the tree rules other states use would support the trial court's ruling even if Florida adopted them.

The court faulted both sides for assuming that the Sixth District would follow its sister courts' decisions without asking whether those decisions were correct. "Litigants should take this opinion as yet another cautionary statement that parties cannot assume we will follow decisions of our sister courts with no examination of whether those decisions are correct," Judge Mize wrote. The opinion cited the Florida Supreme Court's statement in Pardo v. State that "a sister district's opinion is merely persuasive."

Vaughan was represented by Daniel F. Pilka of Pilka Adams & Reed, P.A. USMI was represented by William S. Chambers, IV of Campbell Trohn Tamayo & Aranda, P.A.

The court reversed the final judgment and remanded the case for further proceedings. The opinion is not final until the time to file a motion for rehearing expires and any timely motion is resolved.