In this matter a woman is tragically killed by a falling pine tree while riding her bicycle on a populated and highly used bike path.
There is an eyewitness to the event. There is a video recording of the subject limb which failed killing the woman taken immediately after the incident by a relative. Across from me is a PhD in arboriculture and a registered consulting arborist. The former expert meticulously measures the weight of the subject tree limb. He measures the subject limb’s length and diameter. He presents an opinion as to the percentage of decay that was in the subject live at the time of its failure. The subject tree limb weighs approximately 300 pounds. There was approximately 40% decay located within the subject limb. The registered consulting arborist testifies to a 33% rule acknowledging an observation made by a researcher regarding the amount of trees that fell in a stand of pine trees during a wind event. There is 1st responder testimony regarding the subject limb and resultant death. Governmental codefendant settles for policy limits. The arborist retained by the homeowners association, where the subject tree was growing, testifies that he must have missed during his inspection close to the incident date, the obvious and open defect in the subject tree prior to its failure. There is testimony by an eyewitness to the fact that the subject tree was dead or near dead at the time of its failure.
Upon close examination of the facts, especially the video taken of the subject limb immediately after the incident; the testimony of the tree being dead prior to its failure and the negligence admitted by the arborist who inspected the subject tree prior to its failure, the following opinions were presented in rebuttal:
- As to the subject video taken almost immediately after the tragic event, the video started with a sequence following the subject limb on the bike path towards the blood stains on the asphalt bikeway. The eye witness said that the woman riding the bike, “dropped like a rock” the instant the limb hit her. Yet in the video, every time the photographer took a stab from the limb to the bloodstains, the camera moved up and down. There were 7 such noted up and down movements in the complete video. A person’s normal gait is approximately two feet or so. Seven steps times two feet would mean that the subject tree limb, weighing 300 pounds, had been moved approximately fourteen feet from the precise location the bloodstains were noted on the bike path. Why would somebody drag a 300 pound object 15 feet from where it had landed after failing? And why would they move the limb at all? And, who had the strength to accomplish this feat?
- As to the tree being dead at the time the limb failed was concerned, a video had been admitted into evidence. The video was of the subject tree being cut down and shredded. There was a two second period of time in which the video showed the subject tree going into the chipper. Green leaves were everywhere on the subject tree in that video. Demonstrating of course that the tree was not dead when it failed.
- As to the negligence of the arborist who must have ”missed the defect” during his periodical inspections of the property where the tree grew, it was noted in one of the photographs at the time the tree was removed, an elongated gash or crack high up in the main trunk of the tree. This crack or gash was consistent with a lightning strike that had hit the tree in the after situation of the limb failure. That would explain why the open and obvious defect was “missed” during the arborist inspection of the property in which the tree grew. The tree had been struck by lightning after the limb had failed; thus, the dead appearance to the casual observer.
- Further to these points comes a surveyor who spotted the subject tree on a survey map of the property and the exact spot where the woman was struck by the tree limb. The distance between the two was well over 100 feet. Between the subject tree and the incident occurrence stood an extremely large tree of another species. This would have meant that a 300 pound object would have to have flown 100 feet through the canopy of a tree larger than the subject tree before striking the woman.
- The “33% Rule” was not a rule at all. It was an observation made by a researcher after a hurricane went through a stand of pine trees - of a different species than the subject pine tree.
- The 1st responder noted in his accident report that. “Dead limbs were all over the place”. This statement cast serious doubts as to whether the subject limb was in fact the limb that hit the one. This observation from the 1st responder also demonstrated that numerous limbs at fallen in a landscape which was not cared for. However, the government entity who owned that property had already settled and was no longer in the suit.
This matter settled after my deposition.