Tree Falls, Landlord Denies Responsibility For Damage

[willbravo]

In Georgia

I rent a double garage with a studio (live / work) over it.

There is a cluster of 3 trees, roughly 50' tall in front. Two are green, leafy & healthy. One is barren, as if it were winter.

Late June 2007, mid-day, sunny, no wind. Barren tree falls across the back of my truck, also striking a detached carport and the covered porch of the 'main' house.

I immediately called the landlord who said he'd pull up the insurance company's phone number and call me back. He called back shortly and said that he didn't have the insurance company's phone number with him and couldn't recall their name, so he'd have to call me back. I said that I had to get to a meeting early the next day so how about I removed the tree after taking extensive photos. He said, "fine."

Four days later, no follow up re. insurance, but he stops by while a crew is repairing the carport and house. I mention that I don't have comp insurance for the truck, local collision center says it's totaled (1996, so value was fairly low, $4,500 - $5500 roughly) and could he please get me his insurance info. He says he can't find it. And they didn't notify him, but it might have lapsed. Ugh. He's uninsured. (But he does have a mortgage per county records.)

He calls me 3 weeks later, rent is due. I say, no prob, just please get me that info for insurance. He says he's not liable and will start eviction if not paid in 2 days. I dig in, he sues, I lost, must be out in 7 days.

Judge's finding: I didn't prove that landlord was liable (written verdict) but he also (verbally) commented that I didn't prove what caused the tree to fall. I replied that if it wasn't rotten, there would be all kinds of sprains in the break, but my extensive photos showed a near-clean break, almost like it'd been cut with a very dull saw. How could any reasonable person conclude anything other than rot? Judge says he's not a tree expert, but I may want to mention that should I chose to appeal.

So I just filed the appeal yesterday. I'm looking for a lawyer, but first wanted to forestall the possession writ.

I'd mentioned to landlord that the tree looked dead and we ought to address that a year ago. Judge also said that me parking proximate to tree was an offset. My defense to that was I didn't know the danger was immediate and had planned to take the tree down myself between jobs.

My main issue: Assuming that "notice" last summer is my word v. his and therefore a wash. Assuming I parked proximate (there was no other reasonable place outside the 50' radius) did somewhat offset landlord's liability, but to say that it offset it 100% seems nuts. As the owner / commercial manager, doesn't the landlord bear the most responsibility for safety? He testified that he was frequently on the property and that there was nothing blocking his view of the leafless hickory.

I was stunned that the judge put all of the burden of proof on me, the tenant. Yes, I knew there was a problem, but "should I have know" the immediacy and extent? Oh, yeah, there's no lease. All verbal, but I'm relying on the code (state) that says that a landlord must keep the premises 'in repair.' Seems that allowing a rotten tree to remain isn't doing that.

I brought up two other defenses, both of which were denied, but the tree is the most perplexing. Thoughts? (Sorry for length; trying to include all factors)

[Mr. Knowitall]

You were apparently making a counterclaim in an action for rent. You have the burden of proving your own claim.

Does your court order permit you to pay rent to retain possession? If so, and you wish to retain possession, pay your rent.

If you want to prove your claim for the tree damage, assuming you manage to dig yourself out of the adverse ruling you have already received, you now have a pretty good idea of the evidence you will need.

[jk]

I am still trying to figure out why you felt you could withhold the rent due to the damage of your vehicle. They would be seperate issues.

I would also take the judges: I am not a tree expert statement as advice. I read it as he was recommending you bring a tree expert in as a witness to testify as to your point.

[moburkes]

I don't see where the tree was rotted, other than your opinion.

[willbravo]

Thanks for the replies!
@ Mr. Knowitall: Yes, counterclaiming his action for rent/possession. Court order judgement says, "Pay July & August rent and if you want to appeal, pay September and all months thereafter (into court registry)"
I paid those months when I filed the appeal a couple of days ago. And yes, at the very least, I now know what I'll need. I displayed my naiveté and overconfidence.
@ jk: I was thinking of the damage to the truck (clearly incorrectly, I now see) as akin to 'repair and deduct.' And "Amen, Brother" to your point about bringing a tree expert.
@ moburkes: Clearly, in hindsight, I missed the threshold. I went in thinking that any "reasonable" person would look at a tree with no leaves - surrounded by two other identical trees full of summer leafage - that falls, broken cleanly at the base, on a still, quiet midsummer's day, could only conclude that the tree fell because it was dead / diseased / rotten.

Bottom line, it was MY assumptions that were wrong. I'll take the "gift" from the judge of what to produce in the next step.

Thanks again to all of you for replying.

[Another Demise]

Mr. Bravo culd u show us the pics here?

[George-NJ]

You and all renters should carry your own renters insurance. It is very cheap to buy. The landlord is not responsible, same goes if the house you rented burned down, the landlord would collect on his policy, but without your own policy, you'd be out everything lost in the fire.

[willbravo]

Mr. Bravo culd u show us the pics here?

http://picasaweb.google.com/actionz/...YourNextVictim

I have a bunch more, but these pretty much tell the story I think.

[willbravo]

Maybe not thw whole story. Here's one showing the break-point.

http://www.flickr.com/photos/willbravo/1451339447/

[jk]

well, from what I saw, the tree was dead. Now, you have to prove two things;

1. that it was in fact dead or diseased enough that it fell

2. that the LL was aware of the condition of the tree and did nothing to abate it.

If you prove those 2 items to the judge, you should win.

btw, from your first post:

I was stunned that the judge put all of the burden of proof on me,

whenever you sue another, it is most definately your burden to show why you should prevail. The court will not fight your battle and you must prevail by a preponderance (more than 50%) of the evidence to prevail.