State of N.D. v. N.D. Insurance Reserve Fund
2012 ND 216
| N.D. | 2012Background
- Herring owns a commercial building in Lisbon and operates a chiropractic practice; adjacent property is owned by Lisbon Partners and managed by Five Star.
- A large tree on Lisbon Partners' property overhangs onto Herring's property and brushes his building.
- Herring trimmed and cleaned debris for years to prevent damage from encroachment.
- Herring incurred water damage claims to his building and sought compensation from Lisbon Partners and Five Star.
- District court granted summary judgment holding there was no duty to trim; ruling now challenged on appeal.
- This Court reverses and remands to resolve whether a duty exists and whether damages from encroaching branches can be proven.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a landowner has a duty to trim encroaching trees to prevent damage | Herring asserts a duty to maintain encroaching vegetation | Lisbon Partners/Five Star argue no such duty; self-help remedy suffices | Hawaii rule adopted; duty to maintain when encroachment causes harm |
| Which liability rule governs encroaching trees under North Dakota law | Hawaii rule best aligns with ND statutes | Massachusetts/restatement/others preferable | Hawaii rule adopted; harmonizes §§47-01-12 and 47-01-17 and provides balanced liability |
| Whether evidence shows damages from branches scraping the building | Damages from branch contact are alleged; ice dam damage also claimed | Damages due to ice dams and unrelated factors; summary judgment proper | Remand to determine if genuine issue of material fact exists for damages from branch contact |
Key Cases Cited
- Michalson v. Nutting, 175 N.E. 490 (Mass. 1931) (Massachusetts rule; self-help remedy carried significant limitations)
- Whitesell v. Houlton, 632 P.2d 1079 (Haw. Ct. App. 1981) (Hawaii rule; tree owner bears duty to remove danger; protects neighbor’s rights)
- Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002) (Hawaii rule adopted; balance and framework for liability)
- Fancher v. Fagella, 650 S.E.2d 519 (Va. 2007) (Virginia rule; noxious vs non-noxious trees; criticized as less practical)
- Abbinett v. Fox, 703 P.2d 177 (N.M. Ct. App. 1985) (Supports Hawaii approach; duty to exercise reasonable care to avoid injury)