Tree failures and wrongful death and landscape claims typically fall into the category of valuations. A tree or landscape was damaged, and somebody wants to be paid. And there is much to be considered regarding the valuation of trees and landscapes, which goes to a different level if the tree failure caused personal injury or death. Then the ground rules change. Obviously, much more is now at stake for both the insured, the claimant, and of course the person or entity responsible for paying alleged damages.
When wrongful death or personal injury claims caused by tree failures come to your desk, there are many considerations to be contemplated, one of which is “Who owns the tree?” Other considerations evolve about whether the tree failure could have been prevented; was the failure of the tree or its branches predictable in the before situation of failure?
The answer is most always “duty.”
There is a duty for a tree owner to inspect his property, and trees are a part of real property because trees are growing in the ground. There is a greater duty of care where there are fewer trees and more people than more trees and fewer people. Duty is the defining answer to the question, “Is somebody responsible for this death or injury?”
In the urban forest, where most all of us live and work, the duty to inspect is extremely high. In rural areas where fewer people live, work, and travel, the duty to inspect is lowered. But there is, nonetheless, a duty in most situations.
Duty to inspect for risk of tree failure in part or in whole is published and explained in a national publication, the American National Standards Institute, ANSI A300, specifically, Part 9: Tree Risk Assessment. There is even a credential in the International Society of Arboriculture called Tree Risk Assessment Qualified (TRAQ). Arborists with this designation have been trained, and continue to be trained in identifying risk associated with trees. This Part 9 and the accompanying Best Management Practice (BMP) manual is the rule and guide for tree risk assessment, particularly as it relates to the specificity of risk assessment. The absence or ignorance of this Standard does not predispose duty.
Duty is the first among the four pillars of negligence, followed by breach of duty, causation, and damages to person or property. Of course, the simplistic list must be identified and administered by an attorney.
The management of a claim might well consider duty in the settlement. An arborist or other trained professional is typically brought to bear after the question of duty has been established and causation is sought or required. Causation is often identified by a desktop review of supporting evidence to the claim such as before situation pictures of the tree, other documentation, and the environment in which the tree was or is growing.
Causation has its own set of rules and procedures supported by guidelines that must be followed in the pursuit of facts and truth. As one example, the defect(s) that caused the tree to fail in part or in whole must have been conspicuously obvious and open to observation before it failed.
There is a great probability that a qualified arborist can be located in your state or region with assistance from the International Society of Arboriculture (ISA) or the American Society of Consulting Arborists (ASCA). Each of these fine organizations has published a list of qualified arborists to identify risk. Of course, the qualified arborist credentials are preempted, in the opinions of many attorneys and insurance companies, by experience in the litigation process itself. Knowing what caused the tree to fail, in part or in whole, causing the death or injury does not necessarily translate into the qualified arborist being able to withstand the rigors of deposition, seeking truth in fact-finding, and presenting that knowledge to a jury under the professional and watchful eye of opposing counsel.
Before the question of what caused this tree to fail comes the question of who owns the tree. That typically defines upon whom duty is placed. Then the cycle regarding the four pillars of negligence comes into play.