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Nuisance Trees: The Massachusetts or Hawaii Rule?

Solo and Small Firm

Attorneys approached by homeowners who own property adjacent to a nuisance tree homeowner will often decline legal representation for these potential clients as liability issues addressing tree encroachment across property lines and collateral damage have frequently confounded courts, resulting in less-than-successful legal outcomes for the complaining homeowner. Tree owners often impose severe burdens on adjacent homeowners as they are advised to do little with nuisance trees as the adjacent homeowner has very limited legal recourse. In addition, nuisance tree homeowners believe that damages will often be covered by insurance. This belief often results in claims for subrogation whereby the adjacent property owner’s insurance attempts to collect against the nuisance tree owner’s carrier.

However, there are legal remedies available for homeowners subject to damages from nuisance trees. There are two primary rules for nuisance trees: the Massachusetts rule and the Hawaii rule. This article discusses the various applications of the Massachusetts rule and the Hawaii rule, comparing both and explaining why the Hawaii rule is a better fit for Florida when resolving issues that stem from nuisance trees.

The Massachusetts Rule: Confusion and Inequity

Most jurisdictions agree that self-help is an appropriate remedy. However, states are divided on the availability of remedies beyond self-help. Some states follow the Massachusetts rule, which provides that harm caused by encroaching branches and roots are not actionable. Therefore, self-help is the landowner’s only remedy. This self-help doctrine is premised on the idea that granting an adjacent homeowner a cause of action “every time tree branches, leaves, vines, shrubs, etc., encroach upon or fall on his property from his neighbor’s property, might well spawn innumerable and vexatious lawsuits.”[1] While concern exists for increased litigation, contrary to this fear, there exists no documented evidence of a deluge of litigation resulting from court access for tree-related claims.

In Florida, which closely follows the Massachusetts rule, an owner of a healthy tree is presumably not liable to an adjoining property owner for damage caused by encroaching tree branches or roots. The adjoining property owner “is privileged to trim back, at their own expense, any encroaching tree roots or branches which have grown onto the adjoining property owners land.”[2]
There are situations in which self-help on the part of the adjacent property owner is impossible. In historic neighborhoods throughout Florida, it is common to have extremely large architectural roof soffits on historic older homes. These soffits extend just above and at their boundary line edges. The large soffits are often directly above nuisance trees which are planted just below these soffits, with plantings just below and inches from their boundary edge. This creates real problems for historic homes just at the property line, with the nuisance tree(s) located at the same property line. Just cutting branches on the adjacent neighbor’s “side” would solve nothing because the errant trees are growing up into the soffits.

When historic structures are damaged by adjacent trees, the Massachusetts rule does not allow adjacent neighbors to cut tops of hedges over a lot line. The Massachusetts rule does not address sub issues that could stem from such proceedings. If homeowners bring a declaratory action to address this issue, judges may decide that the Massachusetts rule does not apply, and fashion a simple remedy. The Massachusetts rule creates a perfect setting that leads to the very lawsuits it was designed to prevent. There could be endless sub issues in Massachusetts rule cases. One of the sub issues is whether an adjoining property owner is liable to the tree owner if self-help causes undefined “damage” to roots or branches.

The Massachusetts rule encourages conflict when tree owners complain of vague “harm” to tree roots or branches and sue adjoining neighbors for modifying the tree through trimming or other action due to their concern for their home and their personal health. The outcome in litigation involving damage to roots and branches is mixed. For example, the Washington Court of Appeals held that a landowner does not owe a duty of care to prevent damage to a neighbor’s tree when cutting roots that are encroaching onto the landowner’s property.[3] On the other hand, the Ohio Court of Appeals held that a landowner exercising his or her right to cut encroaching branches from a neighbor’s tree was required to use reasonable care so as not to cause tree damage.[4]
In Balzer v. Ryan, 263 So. 3d 189 (Fla. 1st DCA 2018), a large pine tree stood on the Balzer’s property near the boundary line with the adjacent Ryan’s properties. Tree roots encroached onto Ryan’s property, damaging an expensive sewer line under her driveway. The encroaching tree roots resulted in Ryan having to remove the driveway and replace the sewer line. The appellate court denied Ryan’s petition for writ of certiorari.[5]

The Massachusetts self-help provision was again addressed in Lane v. WJ Curry & Sons, 92 SW.3d 355 (Tenn. 2002), where the Tennessee Supreme Court decided it did not provide a benefit to the public. Lane involved a dispute between adjacent property owners over harm caused by encroaching tree branches and roots. The plaintiff, Gloria Lane, owned a house located next to a house owned by the defendant Curry & Sons. The defendant Curry & Sons had three large healthy oak trees located on its property near the common boundary line with the plaintiff. The trees were much taller than the parties’ houses and had huge protruding limbs hanging over the plaintiff’s house. In addition to the harm caused by the overhanging branches, roots from the defendant’s trees infiltrated and clogged the plaintiff’s sewer line, causing severe plumbing problems. While the defendant offered little assistance and felt no responsibility to remedy the situation, it notified the plaintiff that she could trim the branches and roots. The plaintiff filed suit seeking damages to her house and plumbing system caused by the encroaching branches and roots.[6]

After a bench trial, the circuit court found that the plaintiff’s sole remedy was self-help and that the defendant’s trees did not constitute an actionable nuisance. The appellate court agreed with the trial court’s finding that the plaintiff’s only remedy was self-help and that her nuisance action could not be sustained. The Tennessee Supreme Court disagreed and effectively eliminated the Massachusetts rule in Tennessee. The court declared the defendant’s trees a private nuisance, with a description of nuisance similar to that in Florida:

anything which annoys or disturbs the free use of one’s property, or which renders its ordinary use or physical occupation uncomfortable…[and] extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property.

The court continued:

encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.[7]

This begs the question: If the Massachusetts rule does not protect persons or their property, what is its purpose? The answer remains unclear. The Massachusetts rule does not prevent people from going to court.

The Massachusetts Rule Does Not Logically Fit with Landowner Liability Law

As a defense, the Massachusetts rule does not logically fit well with Florida landowner liability law as seen in various holdings. In Whitt v. Silverman, 788 So. 2d 210 (Fla. 2001), the Florida Supreme Court explained the law: “[I]f an owner has “permitted something to occur on his lands which he realizes [or should realize] involves an unreasonable risk of harm to others outside his land, the owner will be held liable.”[8] In Whitt, the court made clear that even in situations of “naturally growing vegetation or landscaping, including trees,” a landowner’s actions must be subjected to a factual determination of whether the landowner actually breached a duty, and whether injury or damages were a proximate result of any breach of that duty. Landowners have a duty of care. The court made clear that “a discrete factual analysis and determination is required to determine the landowners’ alleged responsibility in each case.”[9] Whitt is cited or relied on in no less than 53 important Florida appellate rulings.

Prior to Whitt, numerous Florida cases held landowners responsible under a standard of reasonable care for conditions emanating from their property that were determined to constitute a danger and hazard to others. As early as 1937, the Florida Supreme Court recognized a duty of landowners extending to those off the premises, and thereby implicitly, rejected any absolute rule of no liability. If the owner has done or permitted something to occur on his lands that he realizes or should realize involves an unreasonable risk of harm to others outside his land, the law imposes on the owner or possessor of the land “the duty of abating or obviating the use or condition from which the risk is encountered.”[10]

In a recent Florida case, the appellant’s right to sue was upheld against the City of North Bay Village, alleging it negligently allowed a known hazardous condition to exist at the intersection by allowing the planted foliage in the areas of the intersection to reach a height that impeded a line of sight. Plaintiffs also sued groundskeepers and the city’s contracted landscape maintenance company for negligently maintaining the foliage. Additionally, the plaintiffs sued a nearby property owner alleging his large tree hedges were negligently maintained and blocked the views of drivers approaching the intersection from either direction. Florida’s Third DCA allowed the case to go to trial.[11]

As noted in some appellate decisions and by some defense lawyers, the Massachusetts rule is the rule in all states. However, only state courts in the District of Columbia, Florida, Kentucky, Maryland, Missouri, North Dakota, Texas, and Utah have formally adopted the Massachusetts rule.[12]

The Virginia Supreme Court stated the Massachusetts rule has been criticized as unsuited to modern urban and suburban life, although it may still be suited to some rural conditions.[13] The rule is now outdated, having evolved in an earlier time when land was mostly unsettled, and people lived predominately in rural settings.[14]

Criticism of the Massachusetts rule surfaced as early as 1956. Much of the criticism centers on self-help effectively replacing the law of orderly judicial process as the way to adjust the rights and responsibilities of disputing neighbors. As one court has observed, “in the long run, neighborhood quarrels and petty litigation will be minimized rather than magnified by a rule that does not require an exercise of self-help before permitting an action to enforce legal rights.”[15]

If an owner knows or should know that his tree constitutes a danger, they should be liable if it causes personal injury or property damage on or off of their property.[16] Courts continue to question, and have for more than a century, whether the Massachusetts rule is fair, given that it deprives deserving plaintiffs of redress when their property is damaged. When some actual damage has been sustained, the injured landowner should be able to maintain an action for the abatement of the nuisance.[17] A reasonable tree rule should provide a remedy to those who are harmed because of another’s tortious conduct.

The Hawaii Rule: Most Reasonable for Florida

The “Hawaii rule” provides that living trees and plants are ordinarily not nuisances but can become so when they cause actual harm or pose an imminent danger of actual harm, or cause actual harm to adjoining property. In the Hawaii case of Whitesell v. Houlton, 632 P.2d 1077 (1981), the court stated:

[W]hen overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots.[18]

One reason for retaining the traditional Massachusetts rule, not the Hawaii rule, is avoiding excessive litigation by property owners adjacent to the nuisance trees.[19] While some courts cling to the Massachusetts rule, the Hawaii rule does address the concerns of excessive litigation by imposing a strict requirement of actual harm or imminent danger to the adjoining property.[20] The Tennessee Supreme Court explains this strict requirement:

[A]lthough some courts express the concern of spawning numerous lawsuits, we note that states which do not limit a plaintiff’s remedy to self-help have apparently not suffered any such flood of litigation. Imposing a requirement of actual harm or imminent danger of actual harm to the adjoining property is a sufficient and appropriate gatekeeping mechanism.[21]

Pursuant to the Hawaii rule, the injured landowner can still choose self-help. An injured landowner “may always, at his own expense, cut away only to his property line above and below the surface of the ground any part of the adjoining landowner’s tree or other plant life” that encroaches upon his property.[22] But, the adjacent landowner will also have the option to use the courts if self-help cannot solve the problems caused by the tree owner.[23]

The Hawaii approach is an appropriate balance between the competing rights of adjacent property owners. The approach is a rational and equitable solution, permitting landowners to grow trees and other plants on their land, balanced against the duty of landowners to ensure that the use of his or her property does not materially harm a neighbor. The “owner of the tree’s trunk is the owner of the tree, he [should] bear some responsibility for the rest of the tree.”[24]

Defendant tree owners receiving a summons and complaint usually settle tree cases immediately. Tree owners often decide it is easier to just be a good neighbor and trim or remove the nuisance tree. Common or statutory law adopting the Hawaii rule may evolve in Florida. Until then, there are other effective ways the adjacent landowner’s lawyer can prevail on tree issues.

F.S. §386.01 Makes the Massachusetts Rule Irrelevant

Although Florida is a Massachusetts rule state, it is also not a defense for a property owner to say it is the adjacent landowner’s problem and not their own. The benefit of a sanitary nuisance case under F.S. §386.01, as opposed to spite fence cases, is that the intent and motive of the property owner causing the nuisance activity does not need to be proven by either party. A spite fence requires proof of spiteful motive. Issues of intent and motive are immaterial to the finding of a sanitary nuisance, or any nuisance.[25] A fair concern of lawyers when declining tree cases is the thought that the Massachusetts rule will be used as a defense by the tree owner. Use of F.S. §386.01 can make that defense impossible. The Massachusetts rule is limited, and its lack of purpose is easily exposed in situations of real risk to others. Use of statutes like F.S. §386.01 make the Massachusetts rule an irrelevant non-issue and useless a defense.

The Spite Fence as a Remedy

The Cornell Law School Legal Information Institute defines a “spite fence” as “a fence (whether a division fence or otherwise) built maliciously, with the sole purpose or intent of annoying, injuring, or spiting an adjoining owner (commonly a neighbor).”[26] Trees can be a spite fence, although designation of a spite fence whether trees, a shed, or even a large hotel is determined by the courts. Florida courts recognize spite fences. As a result of spite fences, many nuisance tree cases may arise. However, few if any cases regarding spite fences reach the appeal process because of expensive litigation.

Spite fence law is becoming increasingly important in addressing nuisance trees. Some states have codified their spite fence laws; in 1913, California adopted a spite fence statute, declaring it a private nuisance to maliciously erect or maintain “[a]ny fence or other structure in the nature of a fence, unnecessarily exceeding [10] feet in height…for the purpose of annoying the owner or occupants of adjoining property….”[27] This statute was later codified as §841.4 of the civil code in 1953; California’s current spite fence statute is as follows:

Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in Title 3, Part 3, Division 4 of this Code.[28]

Spite Fence Law Is Based on Private Nuisance and Equitable Relief

Private nuisance law supports spite fence relief under the common law. An equitable action is appropriate for private nuisance cases, including spite fence issues. The Rhode Island Supreme Court found the noise, odor, and vibration emitted by a sewer processing facility constituted a private nuisance toward a neighboring residential property; the court granted the neighboring residential property injunctive relief and monetary damages.[29] Similarly, the Rhode Island Supreme Court found noxious smells and flies emanating from dairy farm operations were more suitably classified as a private nuisance rather than a negligence action; this case was remanded for a new trial with the presumption that equitable relief would be an appropriate remedy.[30] Such a case and ruling is synonymous to the spite fence relief theory, as neighboring property owner actions, whether direct or indirect by way of materials or organisms’ actions on their property, can be classified as nuisance actions rather than negligence actions.

The private nuisance doctrine has traditionally been employed to balance the conflicting rights of landowners. Cases have adopted the analysis of private nuisance set forth in the Restatement (Second) of Torts,[31] defines private nuisance as “a non-trespassory invasion of another’s interest in the private use and enjoyment of land.” The phrase “interest in the private use and enjoyment of land” as used in §821D is broadly defined to include any disturbance of the enjoyment of property.[32]

A Row of Trees Can Be a Spite Fence

Courts have long held that a row of trees, even if naturally grown, can be found to be a fence. In Town of Clyde Hill v. Roisen, 111 Wn.2d 912 (1989), the court addressed a city fence ordinance that specifically defined “naturally grown fences” and recognized that, absent the legal definition, the trees were “factually” a fence. This discussion clearly indicated that it is a reasonable interpretation of a covenant to include naturally grown barriers as a “fence.”[33]

Similarly, a row of trees or hedges can also be a spite fence. Florida and other jurisdictions have regularly found a row of trees to be a spite fence within the meaning of their state and local laws, including the common law. Not long ago, the California Court of Appeals stated:

In light of this statutory purpose, a structure need not be built to prevent intrusion from without or straying from within to be a “fence or other structure in the nature of a fence” within the meaning of the [California] spite fence statute. Instead, the structure need only be built to separate or mark the boundary between adjoining parcels — albeit, in an unnecessarily high and annoying manner.[34]

But what of an affirmative defense that the tree hedges were planted for privacy needs? The cases make clear that a tree owner would need to provide more than just privacy as justification for a fence or tall hedge trees, if challenged by the neighbor as a spite fence. “Accepting privacy alone would simply result in the statute being rendered meaningless and absurd.”[35] Dowdell v. Bloomquist, 847 A.2d 827 (R.I. 2004), is another definitive case involving tree hedges as a spite fence. The court warned, “the very nature of a fence is such that privacy could always be given as the reason for erecting it.”[36]

The Florida Supreme Court Spite Fence Ruling Is Still the Law Today

The Florida Supreme Court in Larkin v. Tsavaris, 85 So. 2d 731 (Fla. 1956), upheld the application of American spite fence law. It is still the law today and spite fence cases are commonly brought by lawyers throughout Florida. In Larkin, the defendant appealed from a final decree where the trial judge (chancellor) found that certain outbuildings and a large log fence on defendant’s property were in violation of zoning ordinances of Tarpon Springs. The chancellor found that these violations materially deteriorated the value of the plaintiff’s property and the defendant was enjoined from the use of the outbuildings and directed to remove the structures.

On appeal, the Florida Supreme Court in Larkin held that the plaintiff, the adjoining property owner, was entitled to the injunction granted. The court in Larkin decided that what amounted to a spite fence could be enjoined as a private nuisance. The court upheld the requirement that the defendants reduce the height of their large log “spite fence” situated between plaintiffs’ and defendants’ house “to a height of not more than five (5) feet.” Therefore, in Larkin we see an injunction and an order to reduce the height. This could also be applied to tree hedge spite fence cases. Courts could easily order reduction of tree height.

In Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. 3d DCA 1959), the plaintiff, Eden Roc hotel, failed in its attempt to continue to enjoin a planned addition to the Fontainebleau hotel. The stated issue at the time of the case was whether a landowner had a legal right to the free flow of light and air across the adjoining land of his neighbor.[37] It would, therefore, appear there were other overall issues besides spiteful intent.

The request for relief of aggrieved adjacent property owners is usually minimal. Most often there is little error in granting the request of an adjacent landowner. That point was made in closing by the Supreme Judicial Court of Maine in 2011; where trees or actual fence structures are challenged as a spite fence, a court is often aware that awarding an injunction would be harmless.[38] As addressed by the Supreme Judicial Court of Maine, O’Leary planted a row of 74 trees near the parties’ 125-foot-long boundary. The trees obstructed ocean views from the Peters’ newly constructed home. The lower Superior Court found that O’Leary had created a nuisance not only pursuant to Maine’s spite fence statute, 17 M.R.S. §2801 (2010), but also the common law and granted injunctive relief to the Peters.[39]

Peters v. O’Leary, 30 A.3d 825 (Me. 2011), is noteworthy in Florida because Florida does not have a spite fence statute. Florida uses common law, often citing published rulings from other jurisdictions. An important point made by the court in Peters was that the complaining party is usually asking for little from the tree planter; the court also stated, “If there was any error in finding a common law nuisance, that error is harmless” and “we discern no error or abuse of discretion in the court’s judgment, which imposed a fair and limited injunction.”[40]

Most spite fence cases involving trees and hedges are settled by parties early since the aggrieved adjacent landowner usually asks for little, and most cases are not appealed as the parties resolve the issues amongst themselves. As such, there are few published cases in Florida. However, spite fence cases involving trees occur in Florida and can be contentious in the beginning, but they often settle.

Courts address whether a row of trees serves a legitimate purpose, what impact there is on the aggrieved homeowner and whether the installation or height was motivated by any spite. In Florida, tall tree hedges that are challenged can be a nuisance if the trees or their height is motivated by malice or spite, rather than a legitimate purpose, such as preventing trespassing or vandalism.

Trees May Violate F.S. §386.01

F.S. §386.01 states:

A sanitary nuisance is the commission of any act, by an individual, municipality, organization, or corporation, or the keeping, maintaining, propagation, existence, or permission of anything, by an individual, municipality, organization, or corporation, by which the health or life of an individual, or the health or lives of individuals, may be threatened or impaired, or by which or through which, directly or indirectly, disease may be caused.

Section 386.01 uses the words “health of an individual…may be threatened;” because of this wording, there is no need to prove that disease will be caused with certainty. The statute also uses the words “any individual.” Section 386.01 includes actions such as “keeping,” “propagation,” and “maintaining.” This would include the maintaining and growing of trees on an owner’s land. Of interest to a municipality, §386.01 also states: “permission of anything…by a municipality…by which the health of individual[s] may be threatened…or by which…indirectly, disease may be caused.” F.S. §386.01 is broad in making it impossible for a municipality to give permission or allow, via a permit or otherwise, anything that indirectly threatens a neighbor’s health. This may include trees that may impose a threat to a neighbor’s health through possible disease by providing a corridor for vermin to infest adjacent properties. The municipality is simply not allowed to give the “permission” some may seek in their landscape plans. A challenge under F.S. §386.01 can be invoked at any point, including at the planning stage when landscape drawings are submitted to municipal planning officials. Arguably, those with trees encroaching on their property could sue their neighbor and owner of the tree at issue under F.S. §386.01.

Can an Individual Sue Under or Cite §§386.01 and 386.051?

In Hines v. Reichhold Chemicals, Inc., 383 So. 2d 948 (Fla. 1st DCA 1980), Florida’s First District Court of Appeal stated the following:

Although the complaint does not mention it, Section 386.041(1)(a), Florida Statutes (1977), makes it a misdemeanor to permit or cause the emission of gases and noisome odors which are harmful to human or animal life. The violation of a penal or criminal statute is actionable negligence, or, as frequently stated, is negligence per se. 23 Fla. Jur., Negligence, §69. Under the present state of the pleadings we think plaintiff would be entitled to present evidence of violation of the statute, and under proper jury instructions the jury could consider such evidence on the issue of negligence. Upon remand, appellant should be given an opportunity to amend his complaint by reference to the statute, which, incidentally, has been cited to the court by appellant in support of this appeal.

Hines makes clear that a party may be able to sue in negligence, as negligence per se, based on F.S. §386.041(1)(a). That party may also utilize the broader §386.051. Section 386.051 states: “Any person found guilty of creating, keeping, or maintaining a nuisance injurious to health shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.”[41] As to negligence per se, the key element of the action is that the jury does not need to consider whether the defendant’s actions were or were not reasonable. The defendant’s actions are assumed to be unreasonable if the conduct violates an applicable rule, regulation, or statute. The doctrine can make it easier for the victim to recover damages for nuisance trees.

Iguanas, the Department of Health, and §386.01

There will be more situations where trees and iguanas threaten the health of others as the climate changes. Iguanas easily climb trees and leave bacterial contaminated feces on neighbors’ roofs. Towns throughout Florida warn of this known serious health hazard on their websites. There are many scientific articles warning that the captive green iguana is a reservoir of diarrheagenic escherichia coli pathotypes. Such pathotypes are resistant to most known antibiotics.[42]

Florida statutory law has implicitly addressed threatening health issues; F.S. §386.01 clearly states the following is illegal: “permission of anything” by a “municipality” by which the health of an individual “may be threatened” or indirectly may cause disease. As such, if town officials approve plans that allow trees which provide access to disease vectoring iguanas to an adjoining landowner’s roof, that town could be in violation of F.S. §386.01. The town may also be risking liability under negligence per se. The town could hold the tree owner liable for indemnity based on assertions the tree owner may have made to the town, including in permit applications that usually require an affidavit that the permit applicant has followed all laws. The aggrieved adjacent landowner can also ask state or county agencies to intervene, including the Florida Department of Health. F.S. §386.02 states:

The Department of Health, upon request of the proper authorities, or of any three responsible resident citizens, or whenever it may seem necessary to the department, shall investigate the sanitary condition of any city, town, or place in the state; and if, upon examination, the department shall ascertain the existence of any sanitary nuisance as herein defined, it shall serve notice…to remove or abate the said nuisance or, if necessary, proceed to remove or abate the said nuisance in the manner provided in Fla. Stat. §823.01.

F.S. §386.03 provides that the Department of Health, upon determining any nuisance, notify the persons maintaining a nuisance to remove it within 24 hours. If the nuisance condition is not removed, the department or local health authorities may remove or prevent the continuing nuisance. The cost or expense of removal is to be paid by those maintaining the nuisance. If the cost and expense is not paid within 10 days, then it is collected by lawsuit. If the Department of Health is unhelpful, an adjacent owner may consider a nuisance suit, combined as a request for injunction and damages, citing §386.01 as well as common law private nuisance.

Considering the growing iguana problem in south Florida, a landowner should not be insulated from responsibility for entirely foreseeable consequences resulting from iguana access to adjoining owners as a result of nuisance trees.[43] Florida law and that of other jurisdictions show a clear responsibility to others outside of one’s land. Section 364 of the Restatement (Second) of Torts requires owner responsibility where it should be known that others outside of their land could be harmed. This includes conditions the owner creates, which may be trees planted or other appurtenance that helps iguanas climb onto a neighbor’s roof:

A possessor [owner] of land is subject to liability to others outside of the land for physical harm caused by a structure or other artificial condition on the land, which the possessor realizes or should realize will involve an unreasonable risk of such harm, if (a) the possessor has created the condition, or (b) the condition is created by a third person with the possessor’s consent or acquiescence while the land is in his possession, or (c) the condition is created by a third person without the possessor’s consent or acquiescence, but reasonable care is not taken to make the condition safe after the possessor knows or should know of it.[44]

Damages and Punitive Damages

If a court’s ultimate order is to require trimming, reducing, or perhaps cutting down a row of trees found to be as a spite fence, plaintiffs could in addition be entitled to at least nominal damages. What is most important is a finding of liability. Nominal damages are based on any discomforts and trouble the plaintiffs might have suffered from problems caused by a spite fence. The law is clear that cases will not be reversed because a party is only entitled to nominal damages.

More substantial jury-awarded damages may be allowed, particularly if they consist of anything in the nature of impairment of health, perhaps with §§386.01 and 386.51 cited in a claim of negligence per se. Consider the situation of hedge trees as a spite fence, or trees that also assist iguanas to climb and leave feces on the adjacent neighbor’s roof. Should the tree hedges be found to be a sanitary or other nuisance, or a spite fence the neighboring plaintiff could be entitled to a jury awarded sum that would reasonably compensate them for the diminution in value of their premises, as well as a reasonable recovery for apprehension or real impairment of health, and any annoyance caused by its presence.[45]

Where there exists a threat to health, a negligence per se action under F.S. §§386.01 and 386.51 would be appropriate, alleging violation of the statute with a request for a jury award of both compensatory and punitive damages. In a second count, there could also be a request for a jury award for both compensatory and punitive damages, under the doctrine of strict liability or nuisance, even if it is found there had been a lawful but hazardous use of one’s land that affected another. In 1983, Florida’s Second District Court of Appeal made clear that, even using a nuisance theory alone, an award could be for both compensatory and punitive damages to a plaintiff, “no matter what theory is invoked by a plaintiff whose property is damaged by the lawful activities conducted upon or conditions existing on the land of another, the key consideration will always be that useful but dangerous activities must pay their own way.”[46]

Compensatory damages alone could be substantial. Severe effect on one’s preexisting condition caused by antimicrobial resistant salmonella escherichia coli from iguana feces could also be a reason for a significant award. Just as well, the daily apprehension of its occurrence and its effect on one’s health is also a factor, considering that emotional distress is an accepted element of damages.

What of punitive damages if only nominal damages are found? It is conceivable that only nominal damages would be found in many tree cases. In Florida, not only are nominal damages enough for a punitive award, but even where actual or compensatory damages have not been proven, a jury may still assess exemplary damages. The Florida Supreme Court explained in Ault v. Lohr, 538 So. 2d 454, 456 (Fla. 1989), that nominal damages “are in effect zero damages [and are] defined as those damages flowing from the establishment of an invasion of a legal right where actual or compensatory damages have not been proven.”

The court made clear in Ault that a compensatory damages award is not required to underlie a punitive damages award in any case where a jury has made express findings against a defendant. The Florida Supreme Court concluded that “a jury finding of liability is the equivalent of finding nominal damages, and consequently the jury may assess punitive damages.”[47] The Florida Supreme Court upheld other cases such as Nales v. State Farm Mutual Automobile Insurance Co., 398 So. 2d 455 (Fla. 2d DCA 1981), review denied, 408 So. 2d 1092 (Fla. 1981), which also held that punitive damages may be awarded upon a finding of liability even though the plaintiff could not recover compensatory damages.

Under Florida’s punitive damages limitation, even the smallest maximum punitive damages award of $500,000 is still a large sum.[48] Greater punitive awards are possible where wrongful conduct was motivated by unreasonable financial gain, and where the dangerous nature of the conduct, together with the high likelihood of injury, was known by the person making decisions on behalf of the defendant. In that case a jury may award an amount of punitive damages of $2 million.

A $2 million punitive damage award is not an inconceivable situation in tree cases where a landscaper or planner was involved and aware of the hazards.[49] Nor is it inconceivable that a defendant had a specific intent to harm and did harm the claimant, such as in a spite fence tree case. In this situation, there is no cap on punitive damages.[50]

Under Florida law, once the requisite showing under the statute has been made to the trial court, a tree owner may then be subjected to a punitive damages claim and attendant discovery of the tree owner’s financial worth. The theory behind punitive damages is that the amount of an award may be a pittance to a rich man and ruination to a poor one. The goal of punishment must take into account the financial worth of any wrongdoer. Tree owners need to also keep in mind that liability insurance often does not cover punitive damages.[51]

In punitive claims there must be a showing of either intentional misconduct or “gross negligence.” In most cases gross negligence is easier to prove, as intentional misconduct requires proof one knew of their actual wrongfulness. Gross negligence means conduct so reckless or wanting in care as to constitute conscious disregard or indifference to the life, safety, or rights of others. “Others” may mean the adjacent property owner.[52]

This all may not be so difficult to prove in many tree cases. A sobering reminder to tree owners of how badly a trial could turn out for them, and the expense and time consumed in tree litigation. Tree owners are not invulnerable to serious claims. Best if they decide to just be a good neighbor.

[1] Melnick v. C.S.X. Corp., 312 Md. 511, 540 A.2d 1133, 1137 (1988).

[2] Gallo v. Heller, 512 So. 2d 215, 216 (Fla. 3d DCA 1987); see also Scott v. McCarty, 41 So. 3d 989 (Fla. 4th DCA 2010).

[3] Mustoe v. Ma, 371 P.3d 544 (Wash. App. 2016).

[4] Brewer v. Dick Lavy Farms, LLC, 67 N.E.3d 196 (Ohio Ct. App. 2016).

[5] Balzer, 263 So. 3d at 189.

[6] Lane, 92 SW.3d at 355.

[7] Id. at 364.

[8] Whitt, 788 So. 2d at 210; see also Bolton v. Smythe, 432 So. 2d 129 (Fla. 5th DCA 1983).

[9] Whitt, 788 So. 2d at 223.

[10] Hardin v. Jacksonville Terminal Co., 175 So. 226, 228 (Fla. 1937).

[11] Piedra v. City of North Bay Village, 193 So. 3d 48 (Fla. 3d DCA 2016).

[12] See Sterling v. Weinstein, 75 A.2d 144 (D.C. 1950); Richmond v. General Eng’g Enters. Co., 454 So. 2d 16 (Fla. 1984); Schwalbach v. Forest Lawn Mem. Park, 687 S.W.2d 551 (Ky. 1985); Melnick v. C.S.X. Corp., 312 Md. 511, 540 A.2d 1133 (1988); Hasapopoulos v. Murphy, 689 S.W.2d 118 (Mo. 1985); Langer v. Goode, 21 ND 462, 131 NW 258 (1911); Gulf, C.& S.F. Ry. Co. v. Oakes, 94 Tex. 155, 58 S.W. 999 (1900); Cannon v. Neuberger, 1 Utah.2d 396, 268 P.2d 425 (1954).

[13] Fancher v. Fagella, 274 Va. 549, 554 (Va. 2007).

[14] See Chandler v. Larson, 500 N.E.2d 584, 587 (1986).

[15] Ludwig v. Creswald, Inc., 7 Pa. D. & C.2d 461, 464 (1956).

[16] Medeiros v. Honomu Sugar Co., 21 Haw. 155 (1912).

[17] Tanner v. Wallbrunn, 77 Mo. App. 262 (1898).

[18] Whitesell, 632 P.2d at 1079.

[19] Lane v. WJ Curry & Sons, 92 SW.3d 355 (Tenn. 2002).

[20] Id.

[21] Id.

[22] Id. at 362.

[23] Id. at 363.

[24] Whitesell, 632 P.2d at 1079.

[25] See 38 Fla. Jur. 2d Nuisances §16 (2014); Burnett v. Rushton, 52 So. 2d 645, 646 (Fla. 1951).

[26] Legal Information Institute, Wex,

[27] Cal. Stats. 1913, Ch. 197, §1, p.342

[28] Cal. Civ. Code §841.4.

[29] Harris v. Town of Lincoln, 668 A.2d 321 (R.I.1995).

[30] Weida v. Ferry, 493 A.2d 824 (R.I.1985).

[31] See CEW Mgmt. Corp. v. First Federal Savings & Loan Association, 88 Wis. 2d 631, 633 (1979).

[32] Restatement (Second) of Torts §821D (1977).

[33] Town of Clyde Hill v. Roisen, 111 Wn.2d at 922.

[34] Wilson v. Handley, 119 Cal. Rptr. 2d 263, 269 (2002).

[35] Dowdell v. Bloomquist, 847 A.2d 827 (R.I. 2004).

[36] Id. at 831.

[37] Fontainebleau, 114 So. 2d at 357.

[38] Peters v. O’Leary, 30 A.3d 825 (Me. 2011).

[39] Id.

[40] Id. at 829.

[41] Hines, 383 So. 2d at 952.

[42] Gerardo Uriel Bautista-Trujillo, et al., Captive Green Iguana Carries Diarrheagenic Escherichia Coli Pathotypes, Front Vet Sci. (Feb. 26, 2020).

[43] Salomone v. Boulanger, 32 Conn. Supp. 115, 342 A.2d 61 (Super. Ct.1975); 2 Restatement (Second) of Torts §363(2) (1965), and caveat and comment on subsection (2); compare Rodgers v. Ray, 10 Ariz. App. 119, 457 P.2d 281 (1969); see also Hall v. Mertz, 14 Ariz. App. 24, 480 P.2d 361 (1971).

[44] Restatement (Second) of Torts §364.

[45] Humphrey v. Mausbach, 251 Ky. 66, 64 S.W.2d 454 (1933); Adams Construction Company v. Bentley, 335 S.W.2d 912 (Ky. Ct. App. 1960).

[46] Bunyak v. Clyde J. Yancey & Sons Dairy, Inc., 438 So. 2d 891, 896 (Fla. 2d DCA 1983).

[47] Ault, 538 So. 2d at 456.

[48] See Fla. Stat. §768.73.

[49] See Fla. Stat. §768.73(1)(b)(2).

[50] See Fla. Stat. §768.73(1)(c).

[51] See Fla. Stat. §768.72(1) (1999) (emphasis added); see also Fla. R. Civ. P. 1.190(f).

[52] See Fla. Stat. §768 (2)(a) and (b).


Steven Jeffrey GreenwaldSteven Jeffrey Greenwald, J.D., is a Palm Beach practicing trial attorney and founder and managing partner of trial firms located in Palm Beach County and the Treasure Coast.



Jeffery W. Van Treese IIJeffery W. Van Treese II, J.D., Ph.D., is a professor of legal studies (department chair) and environmental science at Palm Beach State College. He is also attorney of counsel at Zappolo & Farwell, P.A.



Michael T. Olexa, Ph.D., J.D. is a professor and director of the University of Florida/Institute of Food and Agricultural Sciences (IFAS) Center for Agricultural and Natural Resource Law.



Connor M. BrockConnor M. Brock, J.D., is a senior legal researcher for the University of Florida/Institute of Food and Agricultural Sciences (IFAS) Center for Agricultural and Natural Resource Law.

This article is submitted on behalf of the Solo and Small Firm Section, Christopher C. Johnson, chair, and Michelle Garcia Gilbert, editor.

Solo and Small Firm