Falling Timber

Although trees add tremendous value to the landscape of a local park, they must be monitored and cared for properly, or they can become a liability.

Many property owners don’t realize that part of their legal duty in maintaining the premises in a safe, hazard-free condition includes trees.

A properly performed inspection of trees and implementation of a maintenance program can minimize the property owner’s exposure to expensive negligence lawsuits, reduce hazardous conditions, and preserve the landscape’s value.

Construction And Development Projects

Almost all community parks include trees, shrubs, and other plants. These “softscapes” add significant aesthetic and financial value to a project.

When property is under development, most of the focus is on infrastructure. Often overlooked, however, are existing trees and plants.

To the untrained eye, a tree may appear to be healthy, yet many trees have suffered damage from lightning, wind, construction activity, insects, disease, and even vandalism.

A healthy-looking tree can often be a dangerous tree--one waiting for the right combination of wind, rain, ice, or other circumstances to cause a tragedy.

It is imperative to protect these trees and plants during development to ensure their health and vigor so they do not become a liability due to damage sustained during construction. A potential, long-term problem can be lessened by spending time drawing up a tree-protection plan.

As a development progresses, hazardous trees are sometimes left standing. Trees are retained for various reasons, such as a call by zoning officials to “preserve trees,” a public outcry “to keep the beautiful tree,” a desire of an owner to “keep the budget down,” or ignorance regarding tree structure, biology, and the law.

Far too often project managers and property owners keep trees that present a potential for harm without realizing the possible consequences.

Trees And Negligence

Who is considered negligent?

A property owner may be considered negligent if he or she has a tree that falls and harms a person or damages property. Generally, the tree has to cause injury or damage for negligence to be claimed.

Often, courts take into consideration whether the property owner was acting as a “reasonable man” in the care of his trees. That “reasonable man” standard of care may be different for different jurisdictions.

Inspection and maintenance of trees might be considered reasonable for a property owner. However, professionals may be held to a higher standard of knowledge if a hazardous tree goes undetected.

Whose Duty Is It?

Many states have recognized that, indeed, property owners have an expressed duty to inspect and maintain their trees. Attorneys have extended that responsibility to developers, builders, property managers, and other professionals who have agreed to “act in a property owner’s stead,” as they have included professionals in lawsuits.

Although some management development and construction agreements cover these matters, many do not. If you are acting as an agent for a property owner, make sure your contract defines responsibilities regarding tree inspections.

Without a contract, professionals and others acting in a property owner’s stead may take on this “duty to inspect” responsibility unknowingly or inadvertently, opening themselves up to liability lawsuits.

Work With A Consulting Arborist

Working with a consulting arborist to develop an annual inspection and maintenance plan for the trees will alert the property owner of structurally unstable trees, and set forth how they will be dealt with! This forward-looking planning can avoid weeks of time required after a disaster.

In many states, property owners have a legal duty to protect visitors, workers, and passersby, including pedestrians and motorists, from hazardous conditions.

Recognizing this duty, property owners and managers must remove snow and ice, repair fences, fix sidewalks, and make sure there are no line-of-sight conflicts that impede the safe flow of automotive and pedestrian traffic.

Professionals should be aware this duty may extend to trees and their care.

Routine Inspection

Who will perform the “routine inspection” the law requires? Theoretically, the required inspection can be performed by anyone. However, there are many problems that only a specifically trained arborist can identify.

An arborist can be of assistance because there have been a number of instances where even highly trained professionals have missed defects in trees that later caused injury. Also, a professional should be knowledgeable about municipal ordinances and state case law as they relate to responsibility for trees on private and public properties.

As property owners perform their duty, they must ensure that the inspector with whom they contract has knowledge of visual tree assessment, structural analysis of trees, tree biology, and habits of particular species. The trees must be evaluated for location, condition, size, likelihood of failure, target, and risk of harm.

Among those sites requiring special attention are:

• Adjacent residences

• Public parks

• Schools and playgrounds

• Roadways and parking lots

• College campuses

• Utility right-of-ways

• Golf courses

• Mature trees near a shelter

• Athletic fields

• Trail systems and walkways

Manage The Risks

So what should a community, developer, planner, or parks director do? Follow these steps to help manage risk from dangerous trees:

• Develop a tree-inspection and management policy.

• Put the plan in writing, and document efforts to alleviate known hazards.

• Work with an attorney to understand the legal requirements in your state.

• Ask an insurance agent about your tree coverage. Request a discount when you develop and implement a tree plan, which lessens the carrier’s exposure.

Work with a consulting arborist. This professional should be trained in visual tree assessment and hazard tree recognition, and be a member of one or more of the national arboricultural associations.

Visual Tree Assessment

This assessment encompasses visual and physical evaluations of each tree. Typically, a tree is identified, described, and sometimes photographed. Findings of the assessment are noted with recommended “next steps,” such as maintenance, follow-up, monitoring, or no action.

Areas to be assessed for overall tree health and safety factors include the following:

• The ground around the root flare (where the roots are growing underground)

• The root flare (sometimes looks like an “elephant’s foot”)

• The bole or trunk of a tree (sometimes called the stem)

• The limb junctions (where limbs branch off from the trunk)

• The scaffold branches (large limbs that make up the crown of the tree)

• The branches (attached to scaffold branches)

• Twigs and fruit that may cause slip-and-fall accidents

• Miscellaneous hazards, such as thorns, low-hanging branches, and line-of-sight conflicts that impede the safe flow of traffic.

Red Flags

A visual tree assessment looks for:

• Obviously rotted, dead, or decayed limbs, trunks, or roots

• Large holes in the trunk

• Broken limbs

• Lightning damage

• Storm damage

• Insect infestation

• Wind damage

• Improper trimming or aberrant growth

• Trees too close to the road

• Line-of-sight obstructed by vegetation.

Get It In Writing

Whether you are a developer, landscape-management firm, professional arborist, property-management firm, farm manager, or groundskeeper, the contract with the property owner should set out what your duties are regarding tree inspections and the notification process.

Clients may not realize the danger a tree potentially presents. Many people believe that if a tree has foliage, it is healthy.

Consulting arborists and other qualified professionals often feel a responsibility to educate their clients about the frequently unseen interior decay in trees, and how they can stand in a weakened state, ready to be felled by wind, rain, or ice storms. Professional arborists should inform their clients about trees that may present a danger to people or property.

Sometimes, property owners say “don’t tell me about it” because they think that if a hazard is not identified, they are not liable. However, courts repeatedly have found property owners have a duty to inspect and maintain their premises, and “not knowing” is an inadequate defense.

Regardless of whether a problem is documented, in many states, the duty still exists to inspect and to maintain trees.

Once a problem has been identified, the consulting arborists and professionals should document in writing the potentially hazardous trees, and the client should sign the report in acknowledgement of its receipt. Both parties should keep copies of the contract and reports on file.

Ignorance Is Not A Defense

Although property owners and professionals acting in their stead may not know about visual tree inspection, tree structure, botany, effects of construction on trees, laws on negligence, risk, or duty, their ignorance is not an arguable defense. It is the opening to a nightmare!

Insurance files and court dockets are full of catastrophes that either were preventable or could have been mitigated. Among them are claims that involve damaged, distressed, diseased, or improperly maintained trees. Property owners have a duty to maintain their trees and to manage foreseeable risks.

Peter S. Beering, Esq., is an internationally recognized expert in emergency preparedness, planning, response, counterterrorism, arson, and bombings. For more information, visit www.beering.biz.

Jud Scott is a past president of the American Society of Consulting Arborists and a member of Jud Scott Consulting Arborist LLC. He provides consulting arborist services for claims/cases/projects involving: hazard tree analysis, premise liability issues, tree and shrub appraisal, tree preservation planning, herbicide interactions, tree inventories, tree worker safety issues, and tree inspection programs. He can be reached via email at treeconsultant@aol.com. For more information, visit www.judscottconsultingarborist.com.

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When in doubt, contact a consulting arborist who understands premise liability concerning trees and is trained in visual tree assessment and structural analysis.

For a registered consulting arborist contact www.asca-consultants.org

For an accredited tree care company contact www.tcia.org

Rulings From Across The Country

Pennsylvania: In Barker v. Brown, 340 A2d. 566 (Pa. 1975), the court ruled that a landowner has a duty to make a visual inspection of trees and would be liable if he knew or should have known of the dangers.

North Carolina: In Rowe v. McGee, 168 S.E.2d 77 (Ct. App. N.C. 1969) the court directed that a landowner be held responsible for a private nuisance if he knew of a tree's condition.

Iowa: In Meyers v. Delaney, 529 N.W.2d. 288 1995 the court stated that one who maintains trees owes a duty to avoid injuring persons on adjoining properties, but there is no duty to constantly and consistently check all trees for nonvisible decay. Further, the tree owner had to have actual or constructive notice of the defect.

Kansas: In Pierce v. Casady, 11Kan.App.2d 23 (Ct. App. Kan. 1985) the court ruled that a landowner may force a tree owner to abate a nuisance if the tree branches do harm or create imminent dangers.

District of Columbia: In Dudley v. Meadowbrook Inc., 166A.2d 743 (Muni. Ct. App. D.C. 1961) the court stated that a landowner has a duty to have his trees inspected by an expert because trees do not ordinarily fall of their own weight without some external force.

Louisiana: In Caskey v. Merrick Construction Co., SO.2d WL 163206 (La. App. Cir.) 41,622 (La. App. Cir. 1/24/07) a verdict was upheld that the duty of inspection by a superintendent on a construction site does not require inspection for all trees that have a potential to fall, even if they might have been damaged; only dead trees.

Indiana: Valinet v. Eskew, 574 N.E.2d 283 (Ind. 1991). The Indiana Supreme Court found that a “possessor of land in an urban area was subject to liability, to persons … for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.” The court further held that a landowner had a “duty … to perform periodic inspections to be sure that the premises do not endanger those using the highway.”

Property owners, developers, and managers should know what the law says about trees and liability in their state. A lack of knowledge is not a defense in many states in a lawsuit.

Source: “Tree Law Cases in the USA” 2000

Bryan BuchkoComment