Joe Samnik, certified arborist with Samnik and Associates, Expert Tree Consultants in Palm Harbor Florida will present, Overview of Tree Valuations in Eminent Domain Cases, to the Hillsborough County Bar Association Eminent Domain Section on October 12, 2011.
This assignment was a personal injury involving an alleged hazard tree, which fell and hit a moving car, injuring the driver. The subject tree was a palm which had died some time prior to its failure. The tree was completely rotted and decayed except for the lower 3 feet of the trunk. The root ball will was completely dislodged from the ground when the tree failed. This assignment came to me approximately 3 years in the after situation of the tree failure.
The scenario and chain of events seemed to play out in a straightforward manner until a review of the photographs taken at the time of tree failure were reviewed. One photo showed a debris field at the point where the car was hit by the palm tree. The same photograph showed a second debris field approximately 40 feet from the first debris field – there were no debris in between the two debris fields. Another photograph clearly showed a portion of trunk, on the floor board of the passenger side of the vehicle. This portion of tree trunk would not have been located in the canopy of the palm tree, which allegedly hit the car and driver. This portion of tree trunk is consistent with wood found near the base of a palm tree but not in the canopy. Yet another photograph showed that the root ball was completely clean and void of severed roots. The roots which were pictured were cleanly cut, and not consistent with the tearing of roots, which would typically occur when a tree fell.
This matter settled shortly after depositions were taken.
As a consulting arborist there is the probability that at one time in your career you will be asked to conduct a tree accident investigation and reconstruction assessment as it relates to insurance claims, personal injury, wrongful death, or property damage. This assessment may be necessitated by a trunk failure of a tree, a root- trip and fall incident, blockage of stop signs or other clear-site obstructions, limb breakage, or tree pruning, to name a few.
Technical advice to counsel regarding these matters requires numerous educational and empirical knowledge prerequisites for the tree expert witness. These prerequisites would include one or, integrity, and character, followed by a fundamental grasp of tree biology as it relates to tree care and pruning, tree removal, and tree biology in general.
Tree experts investigating tree accidents should take to notice of these prerequisite requirements before accepting an assignment regarding components of hazard trees.
It seems there is no end to the disputes between and among neighbors regarding negligence and trees. While many of these disputes arise from nuisance complaints, (e.g. rodents and fruit, stains on cement and cars, and allergies due to pollen or flowers) too many are grouped in tragic categories such as wrongful death, personal injury, or property damage when a neighbor’s tree falls on a home or property, such as a car or boat.
The location of the subject tree, as it relates to geographical settings determines in large part whether the property owner has a duty of care. Property, public or private, located in rural settings, has a far lower threshold of care than the property owner in a city or municipality. The former is referred to in Florida as the “zone of foreseeable risk” and elsewhere as “the rural rule”.
In the “urban forest” the threshold for the duty of care and resultant negligence is high. While voluminous information is available on this duty of care, oftentimes the prerequisite question becomes, “Whose tree is it anyway?”
It is accepted in all states that a tree trunk growing wholly on one property belongs to that person. If the trunk encroaches onto land owned by more than one person, then the tree is owned by all the property owners (special rules, of course, apply). Before this law came into effect in the 1800’s, the “nourishment test” was regarded as law. Here, if the roots of an owner’s tree grew into a neighbor’s land, taking nutrients from the soil, then that neighbor also had part ownership of the subject tree.
Aside from the aforesaid tragic consequences of tree falls and disputes, the most plentiful number of complaints seems to stem from self help. Simply stated, the owner of one property has the legal right to remove or cure a nuisance caused by a neighbor’s tree. In Florida, the landmark case for self help is Gallo v. Heller.
In initiating self help, whether canopy pruning or root pruning, the following should be considered as a rule and guide:
Nothing so needs reforming as other people’s habits.
by Joseph Samnik and Theodore “Ted” E. Karatinos, Esq. *
The day you thought would never happen has arrived. The door bell rings. The person asks for you. As you approach, this process server presents an envelope to you and declares that you are being served with a lawsuit. You have been sued for negligence. Your life is about to change forever. You must now commit your time, money, and emotion to defending your professional reputation in court. Whether you were truly negligent or not, you must face these allegations and travel the rugged road of litigation. While your day may be bad, you will better cope if you understand some basic aspects of negligence before you retain an attorney and a forensic arboricultural expert to defend you in court.
The author of Canterbury Tales, Geoffrey Chaucer, most likely brought “negligence” into the English language from a Latin word meaning carelessness. In the law, negligence is defined as carelessness which causes damage to a person or property. Negligence may arise either from acting carelessly, or from failing to act when legally obligated to do so. Negligence is one of many torts. A tort is a civil wrong. In the American civil justice system, tort claims are filed in court to redress civil wrongs against people and property.
In most jurisdictions, a litigant must prove four legal elements to prevail on the claim of negligence in court. The four legal elements are:
A legal duty requires the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks. Where a person’s conduct creates a foreseeable zone of risk, the law will place a duty on that person either to lessen that risk, or to take steps to lessen any harm posed by that risk. The requirement of reasonable, general foresight is the core of the duty element.
For one example, a legal duty may arise where an arborist provides tree pruning specifications to a customer which do not comply with recognized standards. The terminology may be inconsistent with ANSI A300 Part 1, Pruning.
For another example, a duty may arise where a landscaping professional provides fertilizer recommendations to a customer without listing the rate of application for the fertilizer. Clearly, applying too much fertilizer may cause irreparable damage to the plants and applying too little fertilizer may not cure the targeted problem.
For a third example, a duty may arise where a landscaping professional improperly specifies shade-loving plants in shade, or acid-loving plants in an alkaline soil. In short, the professional’s conduct must conform to accepted professional standards or practices.
If a legal duty has been triggered, then a plaintiff must next prove that the duty has been breached. Whether someone breaches a legal duty will depend on the nature of that particular duty. The violation of a statute, a regulation, or a tree ordinance may satisfy the legal element of breach. If someone carelessly performs or fails to perform a written contract, then the contract and the careless conduct may combine to prove that a duty has been breached.
For example, a homeowner may use the promises made in a consulting arborist’s contract to prove that the consulting arborist negligently supervised the pruning of a tree. A breach of duty may also occur through general inaction or misconduct. If someone creates a hazardous situation by his own action or inaction and can reasonably foresee a later injury, a breach may be proven from the circumstances without resorting to a statute or contract. If a landscape architect specified a poisonous plant on a landscape plan outside a place where children would foreseeably play, then the landscape plan could potentially reflect the breach of a legal duty. In any event, the plaintiff must prove that a legal duty has been breached in order to prevail at trial.
The third element of negligence is legal causation. To prove legal causation, a plaintiff must show a reasonably close casual connection between the misconduct and the resulting injury. In the legal arena, legal causation is commonly known as the “proximate cause”of the injury. There must be such a natural, direct, and continuous sequence between the negligent act or failure to act and the plaintiff’s injury that one may reasonably say: “but for the negligence, the injury would not have occurred.” The negligent act or failure to act must be a probable cause, not merely a possible cause, of the injury.
For example, a county may legally cause a cyclist to be hit by a car, where the county permits tree roots to grow into its paved bike path. The encroaching tree roots then force the cyclist to ride away from the bike path and onto a nearby road. When the cyclist leaves the path and peddles onto the road, he is hit by a car. The fact that the county’s failure to maintain the bike path is only one reason why the cyclist used the road does not defeat legal causation, because the failure to maintain the bike path is a foreseeable and substantial factor which leads to the collision. If a plaintiff can prove that the county’s breach of a legal duty caused the accident, then only one element remains for the plaintiff to prevail at trial.
The fourth and final element of negligence is damages. A person injured by the negligence of another must have fair and just compensation commensurate with the loss sustained. The objective of compensatory damages is to make the injured party whole to the extent that it is possible to measure an injury in terms of money. Damages to property may include repair costs, cure costs, loss of use of the property, and related costs while the property is being replaced or repaired. For example, if a visibly-rotten tree falls on a neighbor’s house inside a subdivision after an arborist performs a negligent harzardous tree assessment by stating that the tree is safe, then the arborist may be liable for a host of damages to the neighbor’s house. Where the negligence causes death, then the law must set forth a different set of damages for the deceased’s estate to recover from the wrongdoer. If a plaintiff proves damages, then those damages will eventually be reduced to a judgment against the defendant.
While you may hope that no one ever accuses you of professional negligence, you should be prepared for the possibility. Arborists, landscape architects, and other landscaping professionals put more than their reputations on the line with every customer. Liabilty lurks for professional negligence. If you find yourself on the other end of a lawsuit for negligence, you should contact your liability insurer, consult with an attorney, and consult with a fellow professional on your course of conduct. Taking the proper steps after receiving a lawsuit will lower your risk of exposure to a final judgment for damages.
* Joseph Samnik is a certified arborist and nationwide consultant in Palm Harbor, Florida who provides forensic analysis on cases of negligence in arboriculture. Theodore “Ted” E. Karatinos, Esq. is a practicing attorney in Lutz, Florida and an adjunct professor of law who handles cases of negligence in arboriculture.
This information cannot be relied upon as giving legal advice. The author in no way attempts to do so. The information in this article is for educational purposes only. If you need legal advice seek the counsel of an attorney.
In Florida it is generally held that the value of trees is the difference in the value of land immediately before and after the casualty. However, several court rulings on tree and landscape appraisals find exception to that general rule.
Tree valuations are made in market value comparables to the extent of making the wronged property owner whole in the after situation of the casualty.
A recent article, Call For Action Over Tragic Death voices the pain of a mother who lost her daughter in a car accident in which a tree falling on the road was involved.
Facts in the Article:
Mother stated in the article that said: “Devon County Council had the road surveyed and chose to ignore the results of the survey. They knew the tree was dangerous and did nothing. It really is that simple.”
I would first express my sincere condolences to the family and friends of Grace Turner, and do hope that the time of mourning passes quickly, to the extent that it will pass it all.
Laws of course differ from country to country, and even within a particular country, laws can differ regionally, or from state to state. In this instance it seems that the damaged tree was a well documented fact, and that its poor health led to the failure of the subject 20 foot long limb.
For the record, from reading the news article, it appears that Devon County was put on notice of the dangerous or hazard tree situation, but failed to take action.
Why this unfortunate situation would not be considered negligence or gross negligence is a matter for local officials and citizens to determine.
However, many things determine the value of a tree.
When determining the appraised value of trees for legal claims or financial claims, rely on an expert who has expertise in assessment value as it relates to the tree species, size, and condition rating which would include but not necessarily be limited to the health of the trunk and bark.
When determining the value of a tree to it’s environment, tree’s are priceless.
Given the state of the economy, and the bleak future it holds for the next several years, many plant nurseries and tree farms are facing liquidation, foreclosures, and repossession. Financial institutions, court systems, and the legal community must necessarily know the value of the se subject trees and plants.
Expert nursery valuations and technical expertise regarding nursery appraisals, and probable expert testimony in the court system or arbitration, must necessarily include a valuation that takes into account the tree health, tree quality, tree quantity, size, and appraised value based upon current comparable marketplace values.
Approaches to valuation typically include the comparison approach, cost approach, prospective net revenue approach, marketable value, cost of repair, cost of cure, liquidation, rate of turnover, and production costs.
Market value is calculated differently for palm trees than other species of trees such as hardwoods or softwoods. Palm trees are valued by the ir overall height, feet of clear trunk, or feet of gray wood. Different species of palms are measured at different points on the plant. O the r tree species are measured by the ir caliber or overall height.
Many tree farms and growers of ornamental shrubs are faced with losses due to a multiplicity of factors which include: Eminent Domain, vandalism, and acts of God.
Appraising the values of these lost plants is typically different and apart from appraised values found in landscapes. One such consideration is when no market value exists for crops in a partial state of development.
In order to arrive at just or full compensation it is necessary to consider other evidence bearing on appraised value. One such consideration is the prospective net revenue approach to value, which addresses the growers efforts in successfully bringing trees and shrubs to the stage of maturity before the loss occurred.
