If a tree on your property falls because of high winds and destroys your neighbor’s fence, who’s at fault? You may think the tree falling is an Act of God and that no one is really responsible. But other defenses may come in to play when someone makes a claim of property damage or injury against your ministry.
While there are many different definitions of an Act of God, it’s generally considered to be an unanticipated natural disaster or other natural phenomenon whose effects would not have been prevented or avoided by due care or foresight.*
When an Act of God causes your property to damage property that you don’t own or injures a person, you may be able to invoke the Act of God defense. Essentially, the Act of God defense asserts a person or organization isn’t liable for property damage or injury.
This defense is not absolute and has its limits. The challenge for the person asserting an Act of God defense is to prove that an accident involving his property occurred entirely outside of human control.
When there is some human responsibility for damage or injury, other legal defenses may be available. Comparative negligence is a commonly used defense in which the defendant seeks to share responsibility with the plaintiff for property damage or injury.
In many states, defendants may avoid paying damages completely if they can show the plaintiff bears more responsibility than themselves. In other states, the analysis is slightly different: to avoid liability, the defendant has to show that the plaintiff had at least as much responsibility for a loss as the defendant did.
Be a Mindful Neighbor
You may be able to avoid a legal issue entirely through good risk management techniques and friendly communication. Here’s a number of things you can do to be a better neighbor:
How do these concepts apply to the example above of the tree? As the property owner, you may use the Act of God defense if the tree’s falling was an unforeseen and unpreventable event. Your ministry should not be held responsible for the damages; the clean-up and any repair costs go to your neighbor.
But what if the tree was diseased or dead, and your neighbor had documented evidence that he asked you to remove the tree several times? If it’s determined that the tree fell on the fence because of the tree’s condition, a court could find your inaction led to the resulting damage. You or your insurance company would be required to pay for the fence.
What if the neighbor parked his vehicle near your diseased tree, knowing it was in danger of falling? If the tree does fall on the vehicle, you could argue that the neighbor was more than 50% responsible for the damage to his property. If your argument is successful, in many states it’s possible he would not be legally entitled to recover repair costs from your ministry.
A few states still follow a defensive doctrine known as contributory negligence. It’s a legal concept used to defeat a claim by a plaintiff because he contributed in some way to the loss he suffered. It’s similar to comparative negligence. However, it can even be applied if the plaintiff is only 1% responsible for his damages.
The goal, of course, is to not need any of these defenses. But windstorms and accidents happen. Part of your overall risk management practices should include an offensive strategy that minimizes the potential for damage to your property and the property of your neighbors.
To help, Brotherhood Mutual has prepared a free property assessment checklist designed to identify items that may affect your ministry’s safety and security. For colleges and schools, we’ve developed School Property: Reviewing Your Buildings and Grounds.
*Your state’s definition may vary.
Thank you for your interest in Brotherhood Mutual. We appreciate the opportunity to provide your church or other ministry with an insurance quote and will reply to your request as soon as possible.
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