Did Your Tree Fail and Cause Injury or Property Damage? Don’t Expect to Use an Act of God as Defense

Trees, Premise Liability and Risk Management

My appreciation for trees dates well back to my childhood days spent at summer camp and camping trips with my family. I still remember the distinct fragrance of the California Sycamore trees that provided shade during the summer camp months and wonderful Coast Live Oak trees encountered throughout California hillsides and campgrounds.

As a certified arborist, professional horticulturist, licensed landscape contractor and land development professional, my perspective on tree aesthetics and utility is now tempered by the business reality of liability and the risk trees create. An old specimen tree viewed from a liability perspective is a completely different experience than enjoying the historical or horticultural wonders the tree may present. In fact, when viewed from a risk management perspective, the same wonderful historical or landmark tree could pose a potentially serious safety threat or legal liability. Imagine the beautiful Coast Live Oak above in an urban setting with some of those branches hanging over a vehicle!

Premise Liability and the Property Owner

It is a property owner’s legal duty to maintain their premise in a safe, hazard free condition and that responsibility also applies to the trees on their property. Whether a homeowner, business, or homeowner association, an integrated inspection and maintenance program can reduce an owner’s exposure to expensive negligence lawsuits while improving the aesthetics and health of the overall landscape. Minimizing the potential harm or loss from a tree related accident is a proactive form of tree risk management.

There are two principle forms of risk associated with trees. Whether the tree is located in a public or private setting, there is potential risk for the tree to cause physical harm or property damage. Typically, it is the public at greatest risk for experiencing harm caused by a tree failure. There is also the financial risk borne by the Owner caused by the potential failure of the tree or tree part.

While many municipalities focus on the financial risk associated with tree failure, owners should focus on the risk of physical harm as the reason and foundation for developing an effective risk management program. Unfortunately, there are no existing inspection standards for tree hazard or risk management in the United States. Jurisdictions implement their own standards, trade associations such as the International Society of Arboriculture (ISA) and American Society of Consulting Arborists (ASCA) are working toward standardization of specifications, techniques, and risk evaluation, but it is still a matter for each property owner to monitor and care for their trees, preferably before they become a legal liability.

Tree Protection Plans During Construction and Development

In San Diego County there is a community that was developed in an existing and enhanced Eucalyptus tree forest. What appeared a great idea 30 or 40 years ago to create an urban Eucalytus forest surrounding a residential suburban community now appears to be a risk management nightmare as 100’ plus tall, 24”-36” diameter Eucalyptus trees drop limbs or suffer complete structural failure falling onto adjacent homes and unfortunately, killing and injuring the public.

In the past, when land was under mass development, existing trees were paid little attention other than objects to be removed during grading. In some instances, specimen trees may have been transplanted and relocated, trees retained in the landscape were usually neglected or had minimal devices installed to protect the tree during development. When a property is under development, the focus is on grading and infrastructure, utilities and street improvements, protecting existing trees is usually overlooked or a very low priority.

With time and recognition of the value and aesthetics trees create, development and politics have combined to create new incentives to preserves trees. The public clamors for “green” improvements in sustainability and now demands trees be retained and preserved. Unfortunately, in some cases the pendulum has now swung to the opposite extreme, whereby the public or property owner is insisting on preserving a potentially risky tree without realizing the potential consequences.

That is why it is imperative to protect and preserve existing trees in a construction zone to ensure their overall health and vigor during and after the construction process and to prevent the tree from becoming a future liability due to damage caused during construction. Most people might not notice symptoms of tree decline caused by construction activities. Without proper protection, tree roots may be damaged by soil compaction or grade change. Trees are often damaged by construction equipment striking limbs or scraping the trunk. Utility trenches cutting across or through root tree root systems seriously undermine the mechanical stability of the tree while compromising the trees ability to absorb water and minerals from the soil.

In instances where historic or specimen trees were retained in and around development, those trees eventually had to be removed due to declining health conditions and the increased risk these trees possessed. Had they been better protected during the development process, there would have been increased likelihood of successful retention of these valuable assets.

Managing Tree Risk Through Policy and Action

Let’s define a policy as a line of argument used to rationalize a given course of action. From an ownership standpoint, having a documented tree risk policy is extremely important. The policy provides a clearly defined direction and course of action for managing the risks associated with tree resources or assets. If a tree failure results in a legal action, having a documented policy is the basis for a legal defense. By having a tree risk management policy, Ownership demonstrates their legal duty to maintain their trees to protect the public and the actions they took to address the risk. Obviously, having a tree risk management policy is better than having no policy at all.

While a policy and procedures are best management practices for larger businesses and homeowner associations, an individual property or homeowner can benefit from a simplified annual inspection and maintenance program without having to have a written tree risk management program. By having a certified arborist inspect the trees annually and implementing the recommendations made in the inspection report, a property owner is demonstrating their duty to protect the public and reduce the risk associated with trees on their property. In so doing, the owner is building a basis for a legal defense in the event of tree related litigation.

Whose Duty is it Anyway?

Owners who think a tree failure is considered an Act of God as a defense will find this to be untrue. Courts across the country have found property owners have the duty to inspect, maintain and correct hazardous tree conditions that inhibit line-of-sight. There has been a natural progression toward statutes that deal with premise liability and the duties owed to guests and the public regarding “foreseeable” problems from trees.

Over time, the legal industry has worked to extend this duty or responsibility to developers, builders, property managers and other property professionals, including those who act in a property owner’s stead. If you work as an agent for an owner, you could find yourself having inadvertently taken on the “duty to inspect” and increased your exposure to a liability lawsuit.

The legal duty for property owners or those acting in their stead to protect visitors, workers, guests, pedestrians or vehicles from hazardous conditions exists in many states. Acknowledgment of this duty is witnessed in the daily maintenance activities and repairs made to fences, sidewalks, walls, gates, building edifices and more. Obstructions are cleared in sight line corridors to insure traffic flow and safety. In many states, the same duty to protect the public has been extended to trees and their appropriate maintenance requirements.
A routine annual tree inspection can in theory, be performed by anyone. However, many tree problems are difficult to detect and require a trained professional to identify hidden deficiencies. A knowledgeable arborist should perform a visual tree assessment, including tree identification, growth characteristics, size, tree biology, and site specific environmental influences. Most importantly is the risk evaluation of a specific tree branch, limb or complete tree failure and risk of harm to any surrounding potential target(s).

Managing Tree Risk

The tree above was a 10-ton Erythrina (Coral tree) that fell and crushed the car below. The tree was noted to have lost a limb earlier but was not properly inspected, nor was the risk abated. http://www.stuff.co.nz/auckland/470947

Trees pose a risk only when there is a target. A target can be a person, animal, property, vehicle; almost anything of value can be considered a potential target.

In the urban forest, trees are located in immediate proximity to people, buildings, vehicles, and countless moving and stationary targets. Sites requiring special attention due to increased risk include parks, schools and playgrounds, campuses, golf courses, athletic fields, and adjacent buildings. While the simplest means to reduce risk is to remove the target, that is not a practical reality in most urban settings. Therefore, an active risk management plan or policy will help reduce the risk of your trees causing a serious accident or injury resulting in a lawsuit.

1. Schedule an annual visual tree inspection and hazard evaluation by a certified arborist.
2. Implement the recommendations made in the inspection report.
3. For larger properties, consider a risk management policy and program.
4. For larger sites, implement a tree inventory log, noting identification, location, size, health and special characteristics of all site trees.
5. Work with a certified arborist trained in visual tree assessment and tree hazard evaluation.
6. Maintain written records, pictures and documents that support your efforts to maintain and protect the public from tree related hazardous conditions.

Conclusion

There are certain “red flags” used in visual tree assessment that you should be aware of. If you notice any of the following symptoms on your trees, contact a tree professional immediately:

• Large holes, fissures and cracks in the tree trunk
• Obvious areas of rot or decay including tree hollows
• Presence of birds, insects, ants etc streaming into tree openings
• Broken branches, dead and hanging limbs
• Sucker or aberrant growth
• Conks, mushrooms or fungi fruiting bodies at base of tree or on trunk
• Any line of sight obstruction

Although a property owner may not want to know, thinking ignorance of a condition eliminates potential liability, our judicial system continues to find owners have a duty to inspect and maintain their properties and ignorance of a hazard is not an adequate defense.

The benefits of implementing an annual tree inspection and maintenance:

1. Increase in tree aesthetic appearance, health and vigor.
2. Increase in tree and property value.
3. Reduction in tree hazard risk.
4. Foundation for a legal defense.

An ounce of prevention is worth a pound of cure. Using a certified arborist for an annual tree inspection and monitoring program is an effective means to reduce tree hazard risk while improving the health and vigor of your investment. Just as you maintain your home, vehicles and other physical possessions, trees grown in the urban environment must receive the proper care and maintenance to keep them in a healthy, vigorous and safe condition.

Article Acknowledgments:
Mr. Mark Duntemann, Natural Path Urban Forestry, Seminar on Tree Risk Management, August, 20, 2010.
Premise Liability and Your Trees, by Petger S. Beering, Esq. and Judson R. Scott, RCA #392, American Society of Consulting Arborists, #3, 2010

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ABOUT THE AUTHOR: Mr. Jeremy Rappoport
Mr. Jeremy Rappoport is a certified arborist (International Society of Arboriculture) #WE-9083A, professional horticulturist and C-27 California licensed landscape contractor, #436000. Mr. Rappoport holds a Bachelor of Science degree in Ornamental Horticulture from California State Polytechnic University, Pomona, with emphasis in landscape architecture, landscape design and contracting.

Mr. Rappoport became a land development expert with decades experience gained working for several public and private master development companies and homebuilders, including The Baldwin Company, Continental – D.R Horton Homes, Starwood Santa Fe Valley Partners LLC, and K. Hovnanian Homes. Working his way from field postings as a landscape, grading and offsite superintendent, to increasingly responsible management positions as Director of Operations and Director of Land Development, Mr. Rappoport is recognized as an experienced, knowledgeable landscape and site development professional.

Copyright Rappoport Development Consulting Services LLC

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.