Can I sue my neighbor for losses if their dead tree fell and hit my home?

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Can I sue my neighbor for losses if their dead tree fell and hit my home?

My neighbor’s dead tree (there is photographic evidence) fell and hit my home causing property damage. My homeowners insurance has a $1,000 deductible. I have requested that the insurance company pursue subrogation for losses including my the deductible. If they are not successful in recovering my losses, can I still sue my neighbor for reimbursement?

Note I live in New Jersey.

Asked on October 15, 2018 under Real Estate Law, New Jersey

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

IF the insurer pursues subrogation and loses, you could not then pursue your own case: the finding of no liability on your neighbor's part against your insurer would be binding against you, too, under the doctrines of res judicata and collateral estoppel (you cannot relitigate what has already been determined by a court).
If they don't pursue subrogation, or do and win but don't pursue it as to the deductible, you could sue (e.g. in small claims court, as your own attorney or "pro se") for the deductible. If, as you indicate, it was visibly obvious that the tree was dead and hence posed a higher-than-normal risk of falling, the neighbor's failure to deal with an obvious and enhanced risk (such as by cutting it down) would likely be considered negligent and entitle you to compensation.


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