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Limbs and trees fail …

tree fallenLimbs and trees fail. It happens all the time as a natural process of nature, and it’s a good thing, unless there is somebody or something under the limb or the tree.

When that occurs, it is seldom viewed as an accident by the person who was the object of stopping gravity or their surviving family members. To these good folks, a lawsuit is their remedy for a tree failure in part or in whole. There is no such thing as an accident in the world of personal injury and wrongful death. And to be sure, there is much truth to most scenarios involving a tree that causes injury or death.

The first step in the process of liability is duty. No duty, no lawsuit. It is the courts, not the jury or attorneys, that assign duty. There is a greater degree of duty to more people and fewer trees than more trees and fewer people.

Duty carries with it the responsibility of due diligence regarding inspections of trees at risk for failure. This component of duty is followed by a breach of that duty, causing something bad to happen, and the consequences of the failure: injury, death, or property damage.

Once duty is established and it becomes at least clear to the survivor or their family that a duty was owed, the question of negligence comes. Was there a failure to inspect or to notice open and obvious defects of the tree in the before situation of its failure? The more open and obvious the defect in the before situation of failure, the stronger the legal argument will be.

Standing in the shadows of Lady Justice, that blindfolded allegorical personification of a woman carrying a sword and a set of scales, is the expert witness. Stepping out from the shadows, the expert carries a multi-page curriculum vitae, numerous merit badges, and an opinion.

Many, if not most, subject matter experts go to great lengths to demonstrate not only the defect but the derivation of the defect and how long the issue was in place prior to failure. Numerous tests using sophisticated equipment are conducted on the subject limb or tree that caused the incident to occur. Arborists are a gadget-oriented group of professionals. There is a piece of equipment that will measure defects of most any derivation or size. Data and statistics abound as proffered by the expert. So do the invoices.

The problem, however, is that nobody knows the precise tipping point of a defect causing failure. Does decay create failure at 50% or 62%? Nobody knows. Yet the uninitiated strive as a mission statement of their work to establish the percentage of decay or damaging populations of insects or disease that caused the failure to occur.

Much of this research into causation may be of little or no value when viewed through the legal lens. Back to duty. Many courts have drawn a distinction between trees growing on urban lands and trees growing on rural lands. The duty to inspect on urban lands may be directly proportionate to the number of targets and occupancy rates located within the failure footprint of the tree. The duty to inspect on rural lands, however, is often nonexistent or at a very low level. All the testing by marketplace gadgets of a tree located along the rural highway may be of no value if there was no duty to inspect.

Other idiosyncrasies exist in the law that work hard against duty. What becomes of an injured person struck by a falling tree on a highway who was not traveling on it? The unfortunate person was professionally repairing a radio in a car parked along the street, under a tree that shed a defective limb. And the differentiation between a falling limb of a tree and a fallen limb of a tree. The law manages the difference between those two situations in an altogether different manner.

Knowledge of tree biology is an essential part of being a testifying expert. The more you know about tree biology, the more successful you may become. However, when viewed as a line item on a chronological list of legal importance, tree biology is not the first criteria regarding successful outcomes of a dispute.

I do wish you well in the marketplace…

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