In looking at the photographs and reviewing the facts in this matter, it is a wonder that this case took so long to be settled. But, unfortunately, sometimes these legal matters do go on for a long time. More money for the lawyers and experts, though. As I have stated numerous times, these situations are quite often not about the trees or the victims but about the money. The main problem in this case was a serious dispute among two of the three defendants about possible insurance coverage. One of the three was a property owner, another was/were the tenants of the property. The third defendant was the county.
The case did not make it to trial, but there was a complex and sometimes testy deposition for me as well as depositions for other parties. I was the testifying consultant for the plaintiff, and, as stated, there were three defendants and the insurance companies. The case was settled, reopened and finally resettled before trial, and I do not know the amount of the total settlement or what share of it each defendant had to pay.
A 52-inch-diameter (at ground level) white oak tree failed and caused severe personal injury to a young man driving his car along a fairly busy county roadway in a mostly residential-neighborhood area. The weather was breezy, but not with any damaging-wind scenario.
Figure 1 is a graphic, though not to scale, that depicts the scenario at my inspection of the scene, which was in March 2017, 12 days after the accident, and many of the tree parts were still on hand. This was really good for my investigation. As many who do this type of work realize, many times we are called in long after cleanup of the scene. The 52-inch-diameter stump was approximately 40 inches outside of a fence in front of a property that had two buildings used for commercial purposes, and it was approximately 30 feet from the edge of the roadway.
The remains of the tree were very likely as rotten, decayed and pulpy as any I have ever seen, and it was amazing the tree had stood as long as it had. Photo 1 is a close-up of the tree stump, while Photo 2 shows the lower tree trunk and Photo 3 depicts the tree-trunk pieces that were cleaned up from the roadway. Photo 4 shows pieces of smaller, very brittle branches that were still on the opposite side of the roadway and obviously were from the very top of the canopy.
I found a Google Earth photo from July 2012, Photo 5, showing that this tree was completely dead at that time, which was approximately five years before the accident. The foliage seen along the tree trunk is from ivy vines growing on it. I further estimated that the tree had been dying for at least two to five years before the photo was taken. This photo also shows the two buildings and the existing fence that were on the property.
In my report, I explained the importance of property owners or managers inspecting trees for risk. I discussed that most tree-risk literature states that the target assessment is of the utmost importance (no target/no risk) and cited the ANSI A300 (part 5) “Management of trees and shrubs during site planning, site development, and construction” definition of a target as “people or property that could be injured or damaged by the failure of a tree or tree parts.” I added that dead and/or dying trees would be high-risk situations, and it was my opinion that this busy roadway was an important target.
I also cited the following literature discussing regular tree inspections:
- Evaluating Trees for Defects, by Ed Hayes, which states that trees should be inspected once a year.
- How to Recognize Hazardous Defects in Trees, by The United States Department of Agriculture, Northeast Region, which states, “Inspect trees under your responsibility every year.”
- Recognizing Tree Hazards, by the International Society of Arboriculture, which states, “It is an owner’s responsibility to provide for the safety of trees on his/her property.”
- Hazard Tree Evaluation and Management, by the Bartlett Tree Research Laboratories, that states, “The property owner/manager has the obligation to periodically inspect trees for unsafe conditions.”; “The property owner must correct unsafe conditions when they are discovered.”; and “Trees should be inspected annually and after major storms for structural defects.”
Citations are very important to include in reports such as this to make clear that my opinions, in this case, and/or conclusions are not just based on Lew Bloch’s opinions, but also are based on other industry opinions. Also, citations will help greatly in preventing courtroom challenges to your opinions, such as a Daubert Challenge. This is a rule of evidence saying basically that an opposing attorney can challenge the validity and admissibility of expert testimony because it is not scientifically valid or industry supported.
In my report, I made the statement that if regular tree-risk inspections had been done, this dead/dying tree would have been noted and the situation abated, and this accident would have been prevented. The head arborist for the county was deposed before me and testified that the county does not do regular inspections along their streets and roads for possible high-risk trees.
I mentioned that my deposition was complicated and sometimes tense. Some of the “highlights” included:
- The attorneys repeatedly asked if the tree failed because of the winds that day. It was my testimony that this tree was so brittle it was ready to fall at any time, with or without winds.
- I was asked in different formats if it was my opinion that trees have to be inspected annually. Was it a requirement? Was it a law? Was it always done by property owners? I answered that it was not required or mandatory, but perhaps inspections should be done.
- I was repeatedly asked about the dying tree and had to remind them repeatedly that it was my testimony that the tree was not dying – it was dead.
One of the three questioning lawyers was quite nasty and disagreeable, and the other two lawyers even criticized him on the record. At one point, this lawyer asked me a question and the lawyer I was working for objected and instructed me not to answer it. The questioner got quite adamant and instructed me to answer the question. There was an exchange between the lawyers and I was asked again if I was going to refuse to answer the question. I stated that if the two could not get together on that matter, I would end the deposition, as I would need my own attorney for legal advice. They got together and I answered the question, which was quite unimportant in my opinion.
Of course, they all asked the same questions over and over again, but with different approaches, trying to get me to disagree with earlier statements as well as get me upset and disagreeable.
Again, I do not know how much the settlement was, how much each defendant had to pay or how much the plaintiff actually got from the settlement. As stated, this case should have been settled very early and saved a lot of time and expense, as well as a lot of anxiety for the plaintiff.
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