Garcia c. Barrett						2013 QCCQ 12197
JG2338    COURT OF QUEBEC
Small Claims Division
CANADA
PROVINCE OF QUEBEC
DISTRICT OF			BEAUHARNOIS
LOCALITY OF VAUDREUIL-DORION Civil Division
No:		760-32-015182-126
DATE:	The 15 th day of May, 2013
______________________________________________________________________
IN THE PRESENCE OF:				THE HONOURABLE	CÉLINE GERVAIS, J.Q.C.
______________________________________________________________________
IGNACIO GARCIA
Plaintiff
v.
NICHOLAS BARRETT
Defendant
______________________________________________________________________
JUDGMENT
______________________________________________________________________

[1]            This is a claim for damages in the amount of $ 7000 due to the fall of a big tree branch on the corner of Plaintiff's house.

THE FACTS:

[2]            Ignacio Garcia and Nicholas Barrett have been neighbors for 25 years on 9 ^th Avenue in Terrasse-Vaudreuil.  Five years ago, part of Mr. Barrett's maple tree fell on his house, and Mr. Garcia helped him to do the necessary repairs.  Mr. Garcia have then noticed that the maple tree was rotten, and have asked Mr. Barrett to cut it, thinking it represented a danger.

[3]            Mr. Barrett gave his consent to Mr. Garcia for a branch that was standing over Mr. Garcia's house to be cut.  It is Mr. Garcia who hired a "émondeur" pruner for this matter.

[4]            Mr. Garcia testifies that he asks Mr. Barrett several times to cut the tree, as he considered it to be a danger, especially since children were playing around.

[5]            On August 28 2011, in the afternoon, while Mr. Garcia was not at home, a very big branch of the tree fell on the south west corner of his house, causing damages to the roof and gutters, as well as water infiltration inside the house.

[6]            Mr. Barrett at that time, was away in Brazil.  Mr. Garcia, who had no home insurance, obtained an evaluation estimating at $ 9000 the costs of the repairs to be done.  Mr. Garcia did the repairs himself.  At the hearing he filed only an estimation in the amount of $ 5046,64, and an invoice for the gutters for a total of $ 461, which last amount was paid.

[7]            The Court asked Mr. Garcia to file within a delay of thirty days the invoices showing what he spent has material to repair his house, wood, insulation, etc.

[8]            The invoices were …… and show disbursements in the amount of $

[9]            In his contestation, Mr. Barrett alleges act of God, since the branch of the tree fell during the remains of Hurricane Irene in Quebec.  He suggests that the fail of the tree was due to the strong winds that occurred in the Province on that day.

[10]         Mr. Garcia has filled a weather report from Environnement Canada, which establishes that (vérifier résumé des rapports météo)

[11]         In his testimony, Mr. Barrett also plaids that he never received a Letter of Demand asking him to cut the tree.  Mr. Garcia answers that there has always been a good relationship between the neighbors, and that he kept asking it in a friendly manner instead of going through a formal procedure.

ANALYSES AND DECISION:

[12]         The liability of the owner of the tree is established by section of the Quebec Civil Code , which states:

 

 

 

 

 

FOR THE ABOVEMENTIONED REASONS, THE COURT:

GRANTS partially Plaintiff's claim;

CONDEMNS Defendant, Nicholas Barrett, to pay to Plaintiff, Ignacio Garcia, the amount of $              plus interest at the legal rate and the additional indemnity provided for by section 1619 of the Quebec Civil Code since October 24 ^th 2011, date of the Letter of Demand;

THE WHOLE with judicial costs in the amount of $ 163.

 

		__________________________________ CÉLINE GERVAIS, J.Q.C.