QUESTION

Can I file a settlement for damage for an "act of nature" event?

Asked on Aug 20th, 2012 on Personal Injury - New Jersey
More details to this question:
During a windstorm, the neighbour’s trampoline blew into my home damaging the gutters and porch. His insurance claims he is not liable. The neighbour had the trampoline secured but not properly enough to avoid this. Though the trampoline may have been anchored, I believe it still incumbent upon the owner to be certain that this "act of nature" could not have caused this damage. In addition, I know just because an insurance company denies settlement does not exonerate the neighbour of liability. I am considering filing this in small claims. Do you feel the neighbour is neglectful and that I should be awarded the settlement for damages to my home?
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24 ANSWERS
MF
Melvin G. Franke (Unclaimed Profile)
Answered on Jun 28th, 2013 at 8:04 PM
It is what a Judge decides.

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JA
Jared Altman (Unclaimed Profile)
Answered on Jun 28th, 2013 at 8:00 PM
It'll be up to the judge. Go for it.

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GC
Gregory Karl Crain (Unclaimed Profile)
Answered on May 24th, 2013 at 2:26 AM
Yes.

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JL
Jeffrey B. Lapin (Unclaimed Profile)
Answered on Aug 30th, 2012 at 12:35 PM
Generally, people are not responsible for extraordinary "acts of nature." Whether your neighbor is liable really depends on a couple of factors: (1) whether the "anchoring" done by your neighbor was "reasonable," that is, was adequate for normal Nebraska wind and weather; and (2) whether the particular windstorm was extra-strong and not forecasted to be as strong as it was. If your neighbor did not do a very good job anchoring the trampoline and the windstorm was forecasted and was not extra-strong or out of the ordinary, your neighbor might be liable for the damage to your home. If the neighbor did do a good job securing the trampoline but the wind-storm was extra-strong and unexpected, then your neighbor is not likely responsible. You might want to consult with an attorney to further discuss your case, rights and options.

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ML
Mark Joseph Leonardo (Unclaimed Profile)
Answered on Aug 21st, 2012 at 2:50 PM
Have you turned this into your own homeowners insurance? You might get their assistance to persuade your neighbors carrier that they should pay. If your carrier pays you, they may go after the neighbors carrier for subrogation. If they collect, they would reimburse you your deductible if one applies. I would try that avenue first before suing.

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DM
Dennis P. Mikko (Unclaimed Profile)
Answered on Aug 21st, 2012 at 2:50 PM
There are many missing facts that would have to be considered to determine liability. However, just because an insurance company will not settle, that does not mean you don't have a claim.

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RS
Ronald A. Steinberg (Unclaimed Profile)
Answered on Aug 21st, 2012 at 2:49 PM
Go to your own insurance, and then let them worry about it.

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LK
Larry M. Klein (Unclaimed Profile)
Answered on Aug 21st, 2012 at 2:48 PM
I do not have enough of the facts to know if the neighbor was negligent in the way he secured his trampoline. To win the case, you would have to prove the neighbor was negligent. Just because this happened does not automatically mean the neighbor was negligent. You have to prove that to win your case. The insurance company denying the claim has no bearing on the ultimate question of whether or not the neighbor was negligent should you decide to file a lawsuit. Small Claims is a good place to file as long as the amount you are seeking to recover does not exceed the jurisdiction of the Small Claims Court.

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AM
Andrew Daniel Myers (Unclaimed Profile)
Answered on Aug 21st, 2012 at 2:48 PM
You have answered your own question. Just because an insurance company denies settlement does not exonerate their insured from liability. File this in small claims. Insurance companies are in delay, deny defend mode and unless you advance the issue, they will continue to push you away.

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WG
William Cleveland Gosnell (Unclaimed Profile)
Answered on Aug 21st, 2012 at 2:47 PM
Yes, negligence for not securing it.

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TP
Mr. Thomas C Patton (Unclaimed Profile)
Answered on Aug 21st, 2012 at 2:47 PM
The answer will likely turn upon the question of whether the wind was "foreseeable." If the wind storms in your area are commonly of a similar strength, then yes, your neighbor will likely be liable. If the wind strength that day was extremely rare, then the court would likely say that the wind on that day could not have been reasonably foreseeable.

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PW
Mr. Paul L. Whitfield (Unclaimed Profile)
Answered on Aug 21st, 2012 at 2:45 PM
There is a defense. Act of God, which covers tornadoes, storms, floods etc. that is what the carrier is asserting. If you show what the neighbor did was NOT reasonable you might prevail. He is not required to anticipate such a catastrophe sand guarantee anything. He only has to do what is reasonable.

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DS
David F. Stoddard (Unclaimed Profile)
Answered on Aug 21st, 2012 at 1:12 PM
I don't, but a jury might. It does seem to be an unforeseeable act of nature to me.

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MH
Michael G Heilmann (Unclaimed Profile)
Answered on Aug 21st, 2012 at 1:12 PM
It is not an act of nature when someone forgets to put down stakes to tie down a trampoline. It is expected during wind that it can move. The insurance company is trying to rip you off.

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AV
Andrew Tyler Velonis (Unclaimed Profile)
Answered on Aug 21st, 2012 at 1:11 PM
The question in court will be whether your neighbor acted as a reasonably prudent person under the circumstances. If he knew or should have known that the trampoline was likely to be blown over to your property and failed to take steps to prevent it, then he can be held legally liable. Once he says he anchored it, the question is whether he did a reasonable job of doing so. He is not required to prevent the occurance, only to take reasonable steps to prevent it. You should file the claim with your insurance company and let them deal with it.

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MY
Michael Edmund Yeksavich (Unclaimed Profile)
Answered on Aug 21st, 2012 at 1:11 PM
If his insurance carrier has denied liability then all that is left is to sue and let a court determine liability.

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BH
Bernard Huff (Unclaimed Profile)
Answered on Aug 21st, 2012 at 1:11 PM
Contact your insurance company to see if it will take care of your damages and go after your neighbor for reimbursement.

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BR
Mr. Barry Ronald Rabovsky (Unclaimed Profile)
Answered on Aug 21st, 2012 at 1:10 PM
We would be happy to provide you with a free consultation if you call my office at either of the numbers listed below. If my office accepts your case, there is no fee charged unless we are able to obtain a settlement for you.

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JG
Joseph John Ganz (Unclaimed Profile)
Answered on Aug 21st, 2012 at 1:10 PM
In my judgment you have a viable claim for negligence and should consider a small claims filing. However, having said that consider the effect on neighbor relations. You still have to live there and get along but, so does your neighbor.

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MK
Mr. Matthew R Kober (Unclaimed Profile)
Answered on Aug 21st, 2012 at 1:10 PM
Possibly. The courts would look at what the reasonable person in his situation should have done. If he did what a reasonable person would have done then he's not liable. If he should have done more, then he could be yes.

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JK
James Peirce Kelaher (Unclaimed Profile)
Answered on Aug 21st, 2012 at 1:09 PM
If the wind blew the trampoline into your yard, damaging your home, his insurance company should pay. However, as we all know, insurance companies do not part with money unless you're on the verge of prying it from their fingers. Go ahead and file in small claims court, unless the value of the damage to your home exceeds $5,000, in which case you'll have to file in County Court. You can't sue the insurance company directly, only your neighbor, and the insurance company will provide a defense. I would discuss this with your neighbor first and tell him (or her) that their insurance company is making you do this because they refuse to pay. (in the interest of domestic tranquility)

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JO
James M. Osak (Unclaimed Profile)
Answered on Aug 21st, 2012 at 1:09 PM
Take it to small claims and you'll know your answer when the judge rules.

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KM
Keven A McKenna (Unclaimed Profile)
Answered on Aug 21st, 2012 at 1:08 PM
Was it foreseeable? Did the neighbor take a reasonable act to secure the harm from happening or not. Those are the questions.The insurance companty's point of view is meaningless unless it is your own company and then you may wish to sue your own insurer.

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Answered on Aug 21st, 2012 at 11:24 AM
yes, you can sue for damages, but the act of nature or as we call it ?act of God?, could be used as a defense. I would suggest that if you file suit, be prepared to mediate it.

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