Tree limb hit car

Good morning all!!!

We have an owner that parks in front of her townhouse instead of her garage or carport.

During a wind storm, a limb broke and fell on her car causing a small dent and scratches. We had the tree trimmed in September and the limb fell at the end of October.

She wants to be reimbursed. She came to my office and I advised her that it was an act of God and we are not responsible. I also read up on Texas law and it says unless the HOA is negligent, they are not responsible:

You likely cannot hold your neighbor liable if your neighbor’s tree was healthy before the disaster and the storm’s high winds caused fall damage to your property. This sort of damage qualifies as an “act of God.”

What are your thoughts on this?

I bet there's no rule requiring she park in the garage or carport, correct? If there is no such rule, then I advise dropping this part of the HOA's defense for now. Down the road let the HOA attorney argue with the owner that she bears some responsibility by not parking in the garage during high winds.

Like you, I reviewed a bit of what Texas law firms say on this. E.g. See https://www.stormlex.com/are-there-situations-in-texas-where-a-neighbor-is-liable-for-storm-damage-on-your-property/

In my experience the real enemy here is the blurriness of "the cause" and so the cost of litigation.

I suspect the HOA simply cannot prove that the sole cause of the limb falling was a severe weather event. I suspect the HOA simply cannot prove that the weather event was "severe." Meaning if the weather was on the "usual" side, then the HOA might have some of the responsibility.

Let's be clear here about the "small dent": Small dents often routinely cost thousands of dollars to repair.

How good is the proof that the limb caused the damage? Did the owner document the damage and its alleged source?

Options:
-- Continue to refuse to pay anything. Force the owner to hire an attorney. Now the owner is looking at expenses that are either on the order of the expense to repair the car, or exceed the cost of the repair.

-- If the owner lawyers up, then to spare the HOA the cost of paying its own attorney, consider splitting the cost of the repair. Again the argument is that the cost of paying the HOA attorney may quickly exceed just paying for the repair.

Thank you for your thoughts. You are actually 1 person I was hoping would answer because your responses are so researched and thought out! I sent her email to the Board and the Board says she will need to contact her insurance (which is what I told her as well). She's just still trying.

Have you talked to the HOA's insurance agent about this? It may not be worth filing a claim, but the agent's perspective may be helpful. And it can be much easier to allow the insurers to settle disputes like this.

My feeling is that, even without a rule prohibiting street parking, the HOA would be on solid ground to say "no". It's impossible to have rules covering any possible misadventure on common areas, so the absence of a rule may not mean much. And owners bear some responsibility for what happens when they use the common area - nothing is risk free, no matter how well those in charge are maintaining things.

That said, it may be cheaper to just fix the car than to fight over it. Neither party can prove that the tree was healthy or that it was unhealthy, which can result in prolonged wrangling.

Oops; I missed this:Terrific. I would point this out to the owner (if you have not already) and say the fault appears to be entirely hers.

Related aside:

I urge the board to get rid of the "requests" part of the verbiage above. The bylaw (covenant?) itself is not a "request" but a strict requirement (and contractual term) to which all owners agreed when they bought into the HOA. The "requests" part just opens the door for either the owner, her attorney or her insurer to say something like, "But the HOA was not enforcing the covenant on parking in the garage, was it?" More messiness, translating to a slightly(?) greater likelihood that the HOA might have to pay something.

Good idea, I will reach out to them and see what they think. We do have a rule that says they are required to park in their garage or carport.

Here's our portion of her complaint. We maintain the sidewalks and the roads, but not the driveways. We inspect the sidewalks regularly. The pavers are inherently uneven. Her attorney is one of the big slip and fall firms in our area. They are playing the game - waiting until they are forced to comply with her medical records, etc. Arbitration is scheduled for March and we will probably be out of the suit before then, but we just offered a $1000 settlement that we don't think she will accept but somehow an offer protects us if she loses the suit.

Defendant XXXX MASTER ASSOCIATION, INC., operated as a homeowners association for the XXXX Community.
12. At that time and place, Defendant, XXXX MASTER ASSOCIATION, INC., owned, operated, managed and/or was in actual control of property, including the driveway where Plaintiff tripped and fell.
13. At all times material to this cause of action, Plaintiff, YYYY, was a renter at said community and was therefore upon the premises as a business invitee.
14. At all times material to this cause of action Defendant, XXXX MASTER ASSOCIATION, INC., as owner, operator, and/or manager of the driveway on said premises, had a duty of reasonable care to maintain the driveway in a reasonably safe condition for the safety of invitees on the premises.
15. Defendant, XXXX MASTER ASSOCIATION, INC., their agents, servants and/or employees, acted negligently by failing to exercise reasonable care by, among other things:
a. Failing to provide a safe place for their invitees;
b. Creating an unreasonably dangerous condition;
c. Carelessly and negligently permitting and allowing a condition to remain on the premises which involved unreasonable risk of harm to another person;
d. Failing to inspect, discover and correct the aforementioned dangerous condition;
e. Carelessly and negligently failing to take reasonable precautions to guard or protect Plaintiff against said dangerous or hazardous condition; and,
f. Failing to properly warn Plaintiff of the dangerous condition or to provide proper protection against same.
16. Defendant, XXXX MASTER ASSOCIATION, INC., knew, or in the exercise of reasonable care should have known, of the existence of the dangerous and hazardous as described above, and Defendant was negligent in not eliminating said dangerous condition.
17. As a result, Plaintiff, YYYY, suffered bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, aggravation of a previously existing condition and numerous medical expenses. The losses are permanent and continuing in nature and the Plaintiff will suffer such losses in the future. WHEREFORE, Plaintiff, YYYY, sues the Defendant, XXXX MASTER ASSOCIATION, INC., for compensatory damages in an amount in excess of $50,000, exclusive of interest and costs, and demands a trial by jury of all issues triable as of right by a jury.

After all, the member is paying the insurance premium through her assessments.

What Lori said.

The fact that you had the tree pruned goes in the Associations favor.
The fact that the limb came down in a storm goes in the Associations favor.

I suspect that the individual doesn't have comprehensive insurance on their vehicle, otherwise their insurance company would pay to repair the vehicle.

That said, it's possible (as their attorney hopes) that the insurance company will settle as it's typically less expensive then a court case.

Is it possible, Lori, and I do appreciate how experienced you are, that the driveways are limited use common areas?

That was a very interesting thought and I went back and looked at the documents to make sure. I also looked at a recent survey for one of the homes. It appears that the property line actually runs through the middle of the sidewalk, so everything on the street side of the sidewalk is common area. In theory, that includes the "apron" of the paver driveway. On the common area side of the sidewalk there is a 2-foot wide grassy strip, then a gutter and then the actual street.

The documents are very clear. The sidewalks are considered common property and the association has to maintain. But the declaration clearly says that the owner is responsible for maintaining and irrigating the grassy strip and they are also responsible for maintaining their driveways. "The Owner shall be responsible to maintain his driveway to the point where it connects to the paved street."

So if the woman fell on the end of her driveway, she did fall on common property, but the association wouldn't be negligent because we don't maintain that part.

We don't even have a definition of limited common areas in our declaration.

The reality is that the HOA most likely is ONLY responsible for 1 - Fixing the situation by removing the tree or more limbs. 2. Paying that person's deductible. They do NOT need to pay for the entire repair. That is on their claim to their insurance. Their insurance will contact the HOA if indeed it needs paid back NOT the owner.

BTW: If this happened on "common area" that means this owner OWNS part of that common property.... So they are basically filing against themselves on this claim since they also are the owner of the property that caused their damages...

Again tell them to contact their insurance company. Make their claim, and then have their insurance contact the HOA. Do NOT deal with them except to tell them they also are owners of the property that caused their damages. Something they don't realize it appears...

BTW: I had a tree fall on my neighbor's house. My tree was in bad health. It was in an difficult area and position to have it removed. I had a quote of $7K and a crane to remove it. Which would have been a huge mess and still could have fallen on their house anyways. It turns out we had the same insurance company and agent. I ended up paying my deductible of $1K to pay for his roof repairs. Luckily the tree didn't do too much damage as it was rotten. It was my fault. However, if that tree had been in good health it would have been on my neighbor's insurance. There was a leftover hurricane blowing over at the time of the event. NOTE: Later part of this tree landed on my house the next year. Finally had the whole thing removed by special equipment costing less money.

I figure the tenant's attorney is, naturally, vigilant for deep pockets and the existential and epistemological arguments that will get him and his client into those pockets. Hence the tenant's attorney will argue that the HOA is responsible for ensuring owners maintain their driveway safely.

It does not matter that this is a stretch. What matters is the billable attorney's hours it will cost the HOA insurer and so HOA to fight this argument.

Good news, Julie! Thanks for sharing.

This is why we have automobile insurance.

If a tree falls on a house, the owner of the damaged house would file a claim with their own homeowner's insurance agency.