Decato Law Office

If your neighbor’s tree overhangs onto your property and damages your fence (or worse, falls on your roof), is your neighbor liable for the resulting damage? That was the issue in Pesaturo v. Kinne, decided by the New Hampshire Supreme Court on February 25, 2011. The Pesaturo case started as a small claim ($2,000.00 was requested as damages), but the case was transferred to the Superior Court because Ms. Kinne asked for a jury trial.

Once at the Superior Court, Ms. Kinne successfully moved to dismiss Ms. Pesaturo’s claim for damages contending, amongst other things, that the doctrine of ferae naturae barred recovery. The Supreme Court reversed because the doctrine of ferae naturae applies to acts of wild animals not “wild trees”. In the end, what seemed as a fairly insignificant case on the surface, has become a fairly significant case on its face because in Pesaturo, the New Hampshire Supreme Court took the time to clarify the rules relating to premises liability.

The court held that under New Hampshire law, for a duty to exist on the part of a landowner, it must be foreseeable that an injury might occur as a result of the landowner’s actions or inactions. From there, the court went on to hold that a landowner should be responsible for a decayed or defective tree that he permits to harm another because it would be an inherent injustice to allow a landowner to escape all liability for serious damage to his neighbors merely by allowing nature to take its course. The Pesaturo case is just another example of a small claim contributing to a State’s jurisprudence.