Snellville, GA asked in Personal Injury for Georgia

Q: Does Rockdale county ga. have immunity for property damages? Is immunity waved by purchase of liability insurance?

My 1999 F250 is totaled and our deck and stairs need repair. We paid t have tree removed from house and truck.A tree on rockdale county right of way fell when the wind got up pretty bad on june 23 2019. I have been denied due to no proof sent in with my claim from bymarcus williams, rick management. I have sent proof to the insurance co. proving it is county property. I sent copy of plat from 1946 showing that row is 20 ft not 15 ft. It shows an extra 5 ft alloted for future sidewalk. We found original property hubs that confrim this. The hubs are 20 ft from middled of road which totally puts tree in their property. When risk management came to measure the did 15 ft and tree was 3/4 on their property. They have since cut down tree. We complained to rockdale county arborist in 8/2015 nothing was done . I spoke to same arboist 8/2019 he does remember sending complain to RDOT.He still claimed tree hazard 8/2019.I am trying to figure out if they are covered by immunity. waved by lia insu

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1 Lawyer Answer
Ken Shigley
Ken Shigley
PREMIUM
Answered
  • Atlanta, GA
  • Licensed in Georgia

A: Generally in Georgia, the owner of a tree is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition. A landowner who knows that a tree on his property is decayed and may fall and cause damage to another has a duty to eliminate the danger, but there is no duty to consistently and constantly check all trees for non-visible rot, as the manifestation of decay must be visible, apparent, and patent. A landowner is only charged with knowledge of the dangerous condition of a tree on his or her property if a layman should have reasonably known the tree was diseased; the landowner will not be charged with the knowledge or understanding of an expert trained in the inspection, care and maintenance of trees. Evidence that a tree had been leaning, by itself, was insufficient to create fact issue whether Department of Transportation (DOT) had constructive knowledge of tree's hazardous condition before it fell. Alleged tree blight in areas along a right-of-way, together with history of tree failures, is not enough to establish constructive knowledge of a tree's hazardous condition before it fell. In claims against the state, sovereign immunity is waived as to ministerial acts so that liability would be the same as a private landowner. GDOT v. Smith, 314 Ga.App. 412, 724 S.E.2d 430 (2012). To avoid liability when a rotted tree falls, a landowner does not have a duty to consistently and constantly check all trees on his property for non-visible rot; the manifestation of decay must be visible, apparent, and patent. Klein v. Weaver, 265 Ga.App. 390, 593 S.E.2d 913 (2004).

Sovereign immunity does bar negligence claims against county government, including maintenance of a road right of way. Waiver of sovereign immunity for claims alleging the negligent performance of ministerial duties only applies to cities and does not apply to counties. A county may be liable for a nuisance if that nuisance rose to the level of an inverse condemnation; mere negligence is not enough. Klingensmith v. Long County, --- S.E.2d ----2019 WL 4593429 (decided September 23, 2019).

Therefore, I am doubtful about the county's liability. However, you would need to send a letter to the Board of Commissioner stating in detail how the county had actual notice of the diseased and dangerous condition of the tree, chose to do nothing, that the diseased tree constituted a nuisance as to your property, and that the failure of the specific (named) county official who saw the diseased condition of the tree constituted negligence in a ministerial duty. Include documentation of your damages. Send that at once by Certified Mail Return Receipt Requested (keep the green card receipt) or Fedex to prove delivery. They might settle with you even though the legal analysis is doubtful.

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