If you are in the business of adjusting insurance claims, you have no doubt heard this scenario numerous times: “There was this incredible wind out of nowhere, and the next thing I knew my huge tree fell through my roof.” Another often repeated theme goes like this: “It must’ve been a bolt of lightning! It hit the tree by my garage and the tree crashed down on my car!”
While the story changes from time to time, the general theme is that an act of God caused my tree to fail. If you are lucky, it is “just” property damage. If you’re not so lucky, it’s a death or injury. In any and all cases, acts of God are a rare occurrence. Certainly there are the vicissitudes and inclementicies of weather to be considered and perhaps categorized as an act of God. However, in the vast majority of cases, it is not an act of God; it’s negligence on the part of the tree owner.
In almost all but the most remote and rural locations, the owner of a ltree has the duty to inspect it. The closer the tree is to people, the greater the duty. In fact, there is a greater duty to inspect when there are more people and fewer trees than more trees and fewer people.
First the duty, then the claim.
The duty to inspect the tree is ubiquitous across the nation when there are targets of people and property located within the footprint of 1.5 times the height of the tree. The owner of the tree need not be a certified arborist. The owner of the tree need only to either hire a professional arborist to inspect the trees on a routine basis or note any signs or symptoms of irregularity. These anomalies or irregularities can then be diagnosed by a professional.
If the tree has a defect that is open and obvious to the casual observer, who may not be able to interpret its meaning, those signs and symptoms that look peculiar can be diagnosed by a professional. In many instances, this diagnosis may be conducted by email with good pictures of the peculiar or irregular signs or symptoms located in the tree.
In the majority of claims, pictures of the subject tree at the casualty site often reveal the obvious defects, which should have been noted by the owner of the tree. In one recent matter, a palm tree fell at a tourist attraction, severely injuring a child. The owner of the tree claimed an act of God, as a significant rainstorm had just passed through the park. Upon closer examination of the remnant stump, a large mushroom was noted. That mushroom was the fruiting body of a deadly fungal disease. Open and obvious. Easily detected. The tourist attraction settled with the plaintiff. No depositions. No trial. No discussion.
Should you ever be managing a case regarding trees and acts of God, the first question you should be asking yourself is the question of duty, then consider the claim.