Trees and Litigation: Does the Tree Accident Merit for Defendant and Plaintiff Lawsuits?

Trees comprise a major role in today’s urban landscapes. Living in Southern California, it is almost impossible not to notice the profusion of trees through-out our neighborhoods, parks, streets, schools, business, office and governmental buildings, not to mention the native tree species in our rural and back country areas.

As with any plant or animal, age and time cause physical and mechanical breakdown in the organism. Since trees are typically large, heavy organisms, physical or structural failure can have catastrophic results. Because trees are planted in close proximity to property and the general public, accidents resulting in lawsuits are inevitable. Therefore, it is incumbent upon the defendant or plaintiff to fully understand and consider the many dynamics involved with tree related accidents.

If a client or attorney is considering a lawsuit involving a tree related accident, the following information may assist in discovery and research for defendant or plaintiff cases.

I. Design Considerations

If a tree failure occurred in or on public property, including streets, parkways, medians, right of ways, slopes, parks, recreational and governmental facilities most likely a landscape architect provided the landscape and irrigation design, details, and specifications for the public improvement. The same is true for most commercial and industrial properties, multi-family housing, and master planned communities.

One of the many roles of the Landscape Architect is to consider the form and functionality when creating a landscape design for a given project Landscape plant palettes for public improvements should include “safe” trees for use in and around public improvements. Functionality, including public safety and maintenance considerations should take precedence over form or aesthetic consideration. Therefore, when researching a case, examine the landscape plant palette and overall design from a functionality and safety perspective.

Typical functional considerations for trees may include:
• View or sight line corridors.
• Screening
• Pedestrian egress and access
• Visual accent, monumentation
• Historical value
• Shading, cooling
• Soil stabilization
• Erosion control
• Privacy
• Community or neighborhood theme

Once functionality is determined, the form or aesthetic qualities of the plant palette are developed. On a macro level, architects and planners select street and public trees to distinguish individual neighborhoods and communities.

Typical aesthetic qualities trees may be selected for:
• Size
• Shape or form
• Structure
• Flower or fruit accent
• Bark, branch or trunk accent
• Evergreen for shading
• Deciduous for winter sun
• Attract birds, bees or butterflies
• Theme
• Environmental suitability

While examining design aesthetics, consider whether functionality was compromised or inhibited by incorrect plant or tree selection. Perhaps the original design concept envisioned a small or medium sized tree planted twenty feet from the nearest sidewalk but in reality a 100’ tall Eucalyptus is five feet from the sidewalk.

Sometimes, tree failure and resultant damages are fairly obvious and with proper forensic analysis, a certified arborist can often times identify the cause of the failure. However, many times a tree may be involved in a case without any failure involved. An out of control vehicle veers off the highway and crashes into a tree in a parkway or median strip. Who is at fault, did the tree cause the accident or resultant damages?

II. Location, Location, Location:

This real estate maxim should be applied to tree location in the landscape. Tree location and tree type are primary issues in tree accidents. Whenever trees are planted in close proximity to people and property, accidents will occur. Trees located within public right of ways, medians, parkways, parks and recreation facilities create a much higher level of risk and pose an increased hazard to property and the general public.

http://www.totalcarcrashes.com/2007/car-kisses-tree/

Street trees are commonly planted throughout urbanized streets in medians, parkways, left hand turn pockets, sidewalk planters, and other confined spaces. Far to often, trees are crammed into small, confined spaces that are inadequate for proper root growth and mechanical support. Small trees left unmaintained in traffic planter areas quickly become large trees that can block or impair traffic sight lines and distances, drop limbs and leaf litter on traffic and create hazardous conditions for the general public.

Tree location is vital in traffic accidents. Investigations should focus on size and location of the tree, lowest permanent branch, canopy size and density and how the physical qualities of the tree and location of the tree impact the accident site. Also consider if the tree was isolated or located in a grove or mass planting of trees. The outer trees in groupings or groves typically absorb more environmental stresses and protect the inner trees. If the outer trees have been pruned or removed, the inner trees may be structurally compromised.

III. Tree Type

Perhaps the most difficult aspect in design is tree selection. As previously mentioned, design professionals select plant material based on the functionality and form (aesthetics). Therefore, the “ideal” tree for a given location takes into consideration the site location and site-specific conditions, the functional use and requirements combined with thematic and aesthetic considerations to determine plant selection. If one or more of these considerations is ignored, an incorrect tree selection can result. Incorrect tree selection abounds and can be seen simply driving down urban streets where you can view inappropriate street trees such as Eucalyptus or Ficus in confined parkways or planters, tree root crown or flairs growing over curbs and cracking sidewalks, trees topped or sheared as limbs extend into traffic lanes.

The type of tree involved in an accident may be as important as the tree location.
Proper tree identification should include the genus, species and particular variety or cultivar is as well as common name. Research the tree cultural requirements, growth and maintenance characteristics. Understanding the particular growth habits and characteristics of the tree may strengthen your case.

Site investigation may very well yield evidence pertaining to possible design flaws, poor location and incorrect tree selection. Certain trees are known to be dangerous, Eucalyptus trees are known as “widow makers” for their habit of dropping large scaffold limbs or suffering complete structural failure without any notice or warning.

http://www.dn.com.au/sta/sta10.html

http://www.ucanr.org/sites/treefail/failure_photos/eucalyptus_globulus/

Coral trees (Erythrina caffra) grow very fast, with enormous, heavy soft wooded limbs that can shatter in storms or drop unexpectedly. Even with these obvious defects, these two tree genera have been heavily planted in the 1970-1990’s, with agencies, property managers and owners having to deal with the resultant increased risk and liability inherent in these older, dangerous trees.

IV. Maintenance

Over time, the landscape and nursery industry has introduced thousands of improved tree hybrids and varieties. Newer plant materials are developed for improved specific characteristics including flower, fruit, growth rate, size, drought tolerance, insect and disease resistance and decreased maintenance requirements. As older, senescent dangerous trees are removed, newer, safer and improved tree varieties are being utilized.

Unfortunately, the urban landscape includes countless thousands of older, neglected and poorly maintained trees and municipalities have shrinking budgets and higher priorities for asset allocation. Deferred tree maintenance results in increased risk of tree failure and increased liability for property owners, public agencies and property managers. It only takes one storm or wind event to bring down heavy, over grown tree limbs or entire trees. Existing dead wood, damaged or dangling branches eventually will fall from trees with dangerous results. Old palm fronds can become unmanned guided missiles in windstorms.

http://www.dailymail.co.uk/news/article-515871/Councils-accused-chainsaw-massacre-trees-health-safety-fears.html

Public agencies, property owners and managers, are responsible for trees on their property. It is their responsibility to maintain their tree resources and provide for the public safety. Premise liability cases involving tree accidents are increasing and a tree failure can no longer be defended as an “act of God”. With proper annual inspection, and follow up maintenance, a tree failure may be averted.

When investigating a tree accident, discover whether the property owner, manager or agency has a documented Tree Risk Policy. Managing risk through a documented policy is essential. It clearly defines managements’ attitude and actions they will take to manage risk associated with their tree resources. When implemented, the policy forms the basis for a defense in the event of a tree failure and any resultant litigation. Establishing and maintaining an active tree risk and management policy indicates ownership or managements commitment toward improving and maintaining public safety, in the event of a lawsuit, having a tree risk policy plan is certainly preferable to having no policy at all.

Consider past maintenance records, including tree logs, inventories, past recommendations or service visits. Is there any kind of maintenance record or was the tree(s) ignored and never maintained?

Was the tree hazard identified prior to the failure? If on public land, was the tree hazard called into the municipal agency responsible for tree inspections and maintenance? If so, how and when did the agency respond? Does the agency responsible for tree care and maintenance have a documented tree risk policy? If not, how do they prioritize and manage the risk associated with older trees on public property? Does the agency rely on the general public to call in a potential tree hazards or do they take pro-active action to inspect older suspect trees in higher use area on their own? Unfortunately, many municipalities rely on public generated information, a very dangerous reactive rather than pro-active management practice. The public is not educated in arboriculture or tree care and should not be relied on as an inspection tool for a municipality.

In summary, tree planted in the urban landscape in close proximity to pedestrians, motorists, the general public and property carry inherent risk. As they age, the risk of accident increases over time. Design, tree selection, location and maintenance can play a positive or negative role over time in minimizing or increasing tree risk. By using a variety of landscape professionals, including a certified arborist, tree risk can be minimized, functionality and aesthetics maximized.

Article Acknowledgments:
Mr. Mark Duntemann, Natural Path Urban Forestry, Seminar on Tree Risk Management, August, 20, 2010.

http://www.landscapeexpertwitness.com/expert_witness_services/monthly_expert_topics/PDF/Trees-and-Litigation.pdf

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ABOUT THE AUTHOR: Jeremy Rappoport
Jeremy Rappoport is President of RDCS LLC, providing landscape, arboriculture, horticulture, and site construction consulting and expert witness services.

Mr. Rappoport graduated with a B.S. degree in Ornamental Horticulture from California State Polytechnic University, emphasis in landscape architecture and contracting. Mr. Rappoport is a C-27 California state landscape contractor, #436000 and ISA (International Society of Arboriculture), certified arborist, #WE-9083A.

Mr. Rappoport is a construction professional with decades experience working for major private and public master development companies and contractors as a landscape, grading, and offsite superintendent, director of bidding and estimating, operations and land development throughout Southern California.

With over three decades experience and education, Mr. Rappoport is an acknowledged industry professional, known for his integrity and honesty as a professional landscape construction consultant.

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.