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Way Down Upon a Deadly River …

Tree fallen on riverWay down upon a deadly river – a canoe trip and a fallen tree create a sudden and sad ending for a traveler.

What better way to spend a lazy afternoon than a downstream trip in a canoe on one of Florida’s many scenic rivers. Beautiful weather 12 months a year. Well-maintained state parks. Crystal-clear springs. Well, there are the alligators.

This matter came across my desk by a plaintiff’s attorney with whom I had worked in the past.  It was a tragedy of epic proportions. A mom adrift with her thoughts was crushed in the noontime of her life by a decayed tree growing along the riverbank.

There were a lot of pictures taken, some from the top of the riverbank. Clearly the inside of the tree was rotted and a large decay was evident. There were no signs warning people on the river of the danger of possible falling trees or broken branches, although there were signs advising people of the presence of alligators. Plaintiff’s attorney was nonetheless justifiably concerned as it related to negligence. The question of duty was assumed as the river served as a public invitee.

Proceeding with the assumption that a duty did exist to inspect trees for dangerous conditions, the question was about how the inspection could be conducted. The pictures demonstrated that the only way a reasonable inspection could take place would be from a boat. The riverbank was not negotiable, as the grade was too steep to navigate by foot. No, this had to be a “windshield inspection” from a boat. That limited the identification of tree defects to dead, dying, or declining trees. Unfortunately, the nuances of defects could not be detected from a boat. That included the decay at the base of the subject tree and, of course, the hollow caused by the decay inside the tree.

Defects of a failed tree, in part or in whole, must be open and obvious. Symptoms caused by hidden defects can be a rule and guide in an inspection process satisfying due diligence. In the matter at hand, none of these criteria existed.

It could be presumed that the grieving family members continued their efforts to locate an attorney who would accept this assignment. And presumably there are attorneys who would accept this assignment based on the assumption that an insurance company might settle for something, if not policy limits. However, if tried, the matter would seem to settle unfavorably for the mother’s family.

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