Why does a tree fall?
After the hustle and bustle of determining legal positioning in a wrongful death or personal injury matter regarding tree failures, this question inevitably comes up. Could the failure have been predicted within a reasonable amount of certainty before the incident occurred? Were the defects open and obvious? Were the defects irreparable?
Extraordinarily little is known of trees and their function. We are discovering and learning. There is a small contingency of credentialed professionals who manage risk and tree failures. They proudly publish their TRAQ credential (Tree Risk Assessment Qualified). But can they predict failure? In some cases, the defects are open and obvious, and failure can be prevented or at least managed. In other scenarios, such is not the case. Thus, the conflict of opposing opinions raised by plaintiff versus defendant regarding the condition of the tree in the before situation of failure.
As the search for truth unfolds battle lines regarding a failed tree, defenses and offenses form. These attacks and defenses have a common thread associated with the claim. One of the most common defenses is to claim that an Act of God caused the failure, in part or in whole, of the subject tree. But there are limitations to the Act of God defense. An attorney is the best source of knowledge and conduct for these limitations and the subject matter as applied and interpreted by legal knowledge.
Acts of God
A touchstone for those defending a failed tree certainly include Acts of God. If there is any type of weather event, an Act of God defense is often initiated. An event may be considered an Act of God when it is occasioned exclusively by the violence of nature, the sole proximate cause of the event for which liability is sought to be disclaimed. However, it seems when an Act of God combines or concurs with the negligence of the defendant to produce an injury, the defendant is liable if the injury would not have resulted but for his or her own negligent conduct or omission. An Act of God is not only one that causes damage but also one in which reasonable precautions, or the exercise of reasonable care, by the defendant could not have prevented the damage from the natural event. The human charged with the care of the tree must have exercised due care prior to the intervention of the Act of God claim.
Insurance companies are becoming keenly aware that a weather event that is being blamed on liability circumstances may well have been preventable with the initiation of due care, even if the weather event was extraordinary.
A subject tree whose limb failed and hurt or killed someone during 75-mile-per-hour winds may have had a preexisting condition that was open and obvious before the weather event occurred. While it might be successfully argued that the limb would have failed on a calm day, the weather may have contributed to the failure but was not the proximate cause.
Asserting an Act of God defense may be problematic if a close analysis of the structure and health of the subject tree was not analyzed in the after situation of the weather event. Photographs are another source of knowledge regarding the before situation condition rating of the subject failed tree.
In matters where there are more people and fewer trees, the duty to inspect these subject trees rises exponentially as the number of people frequent the footprint of failure of any of the subject trees.
When inspecting trees for due diligence purposes, strongly consider retaining a qualified arborist or other qualified professional to do so. While the TRAQ credential should be a prerequisite for consideration of the professional who will be inspecting your trees, it must be remembered that little is known regarding the mechanics of tree failure. A trained professional will, however, identify open and obvious defects that might be able to be remedied, repaired, or cured.
The International Society of Arboriculture (ISA) has a website that will enable you to locate those members who may be qualified to assist you in tree-risk analysis. Another organization, the American Society of Consulting Arborists (ASCA) is another excellent source to provide you with qualified professionals who can conduct a tree-risk analysis.
I do wish you well, and a safe and prosperous future. Any questions which you may post will be promptly replied to.