Decaying Trees: Hazards Overhead
Written by James E. O’Connell, III
Crack! Whoosh! Boom!
It is early on a fall morning in Maine. An older couple is tending to their rented campsite in a wooded area near a pond. They hear three sounds in quick succession:
Crack! Whoosh! Boom! Startled, the man looks up. His wife, who had been making coffee, is lying on the ground. Next to her is a heavy tree limb. She is bleeding from the head and struggling to speak. Their grandchildren are sleeping in a tent close by. “I love you,” she says to the man, before losing consciousness. Later that day, she dies in the hospital.
Foreseeable Risks and Duty of Care
Commercial campground owners, like other property owners, have a duty to use reasonable care to make their property safe for customers. An internet search on falling limbs will produce many references to deaths and catastrophic injuries suffered by unsuspecting people while walking, sitting or riding in areas such as parks, playgrounds, walkways, and also on private property. When these events happen close to home, they make the local news because the idea of a dangerous tree seems so shocking and so unusual. Many people in Maine still remember that in 1999 an elementary school student in York was killed by a branch falling in the school playground. However, in 2010 alone, two people were killed and two more were seriously injured by falling limbs in three separate incidents in New York’s Central Park. In the electric utility industry, it is well known that falling trees and tree limbs are a major threat to public safety, so the industry spends three billion dollars a year trimming and pruning trees. Dangerous trees are a significant and constant problem.
Berman & Simmons lawyers have successfully handled several claims related to severe injuries caused by falling trees and tree limbs. The liability arguments in these cases are all based on the duty, described above, of those responsible for inspecting, trimming and cutting hazardous trees and tree limbs. To succeed, the injured person must prove that the responsible landowner was negligent in failing to fulfill its duty to inspect and maintain its trees, resulting in the incident and injury.
These cases are vigorously defended. They require the collection of records and data, interviews with witnesses and defendant’s employees or agents, and expert testimony from arborists and property managers.
The most common defense is that property owners are not liable for acts of nature and cannot be expected to regularly inspect hundreds or thousands of trees. Defendants will claim that the rot in a fallen tree or limb was undetectable before the accident. The defense will also argue that the time and expense required to do more than it did is an unreasonable burden, especially in an age of decreasing rather than increasing corporate and government budgets.
Duty to Inspect and Prune: “An ounce of prevention is worth a pound of cure.”
The process of identifying, inspecting, pruning and removing dangerous trees and limbs is generally known as vegetation management. Partly because of the extensive experience of arborists in the utility industry and in maintaining public parks, the field of vegetation management is well developed. After a limb falls and causes a serious injury, it is hard for a defendant to prove that it followed an appropriate vegetation management plan, because such plans are usually quite effective in minimizing the risk of injury from rotted trees and limbs.
In most of the cases we see, the defense acknowledges its obligation to protect against the risk of falling trees and limbs in its high traffic areas, but claims to have established and followed a sound tree-management policy, regularly inspecting trees and maintaining adequate and properly equipped maintenance crews. A thorough investigation of these claims, and checking them against established vegetation management standards, usually shows otherwise.
For example, we may be able to show that if the defendant’s plan for inspecting trees had been followed by competent personnel the tree or limb would have been identified and removed. Or that the defendant did not have the hoists, climbing gear, and extenders necessary for proper inspection and pruning.
One goal and benefit of the tort system, including premises liability cases, is to encourage and promote better safety practices. Close scrutiny of risks and risk mitigation practices over time has produced a safer society and fewer tragic accidents. Through the litigation of fallen tree limb cases, standards of vegetation management have developed. Property owners have access to formulas, checklists, and rating scores for use in evaluating trees. Attentive property owners have learned that they must use professional arborists to regularly inspect and identify hazardous trees, because typical maintenance staff personnel are not qualified to detect signs of deterioration or environmental factors that will accelerate decay.
In the campground case mentioned above, a national consultant who has devoted his career to counseling and developing best practices manuals for camps was retained to review the case. He emphasized the risks of falling limbs and testified that a written policy for regular tree inspection by a qualified arborist should have been in place, and that an education program and a documented compliance chart, especially for high traffic areas, would have made a difference.
In many cases, an experienced, certified, working arborist who inspects the fallen limb, the tree from which it fell, and who evaluates the defendant’s vegetation management plan can show that reasonable care would have led to removal of the limb before it fell. Through an arborist’s testimony, and cross-examination of the defendant and its crew, the plaintiff can often establish that the defendant either had no plan or did not follow its plan, that the maintenance staff was untrained, unqualified and incapable of identifying and remediating dangerous trees on defendant’s property, and that the defendant’s negligence was a proximate cause of the injury.
Properly investigated and developed, a fallen tree limb case can provide an injured person with adequate compensation for his losses, and also provide comfort in the knowledge that pursuing his case may have helped to prevent future similar incidents.