Tree Hazard Evaluation & Liability

Identifying and managing the risks associated with trees is a subjective process. Since the nature of tree failures remains largely unknown, our ability to predict which trees will fail and in what fashion is limited. As currently practiced, tree evaluation involves examining a tree for structural defects, associating those defects with a known pattern of failure and rating the degree of risks.

Tree hazard assessment involves three components:

1. A tree with potential to fail

2. An environment that may contribute to that failure

3. A person or object that would be injured or damaged (i.e. the target).

By definition, a hazard situation requires the presence of both a defective tree and a target. Unless a target is present, a tree cannot be hazardous. As a result, assessing hazard is not limited to evaluating failure potential. Hazard evaluation must consider the potential presence of a target.

There are four conditions that define the presence and degree of liability associated with failure of a hazard tree (Anderson and Eaton 1986). The first is duty, the obligation or responsibility to care for trees. The second is breach, the failure to act in a reasonable manner. The third condition is cause, that the breach of duty indeed caused the injury to take place. Finally, there must be harm, damage or injury.

Traditionally, you have three levels of responsibility to people who visit your property:

1. Trespasser: enters without special consent or privilege, without payment or license. Not necessarily illegal. We owe them lowest duty of care, essentially just to not set traps.

2. Licensee: has permission or consent, express or implied, to go on land for own purpose. Applies in general to visitors to public land.

3. Invitee: someone who pays a fee or is otherwise specifically invited for recreation or business purposes. Highest duty of care, must assure reasonable care has been used to prepare premises and make them safe for user. Must inspect and then remove or warn of known hazards, generally, exercising reasonable care to protect user.

Now the standard for invitee pretty much applies to all visitors. Now most states are using a "prudent man" test for the duty of reasonable care owed to people who enter. What would a prudent person do?

Property owners have a general duty to visitors to use a reasonable care to keep the premises safe and to guard or warn the visitor from any hidden danger or defect that is discoverable using due care (such as inspection by qualified hazard tree inspectors) and presents a reasonably foreseeable risk of harm.

Negligence

If owners do not comply with their duty, they may be liable for resulting damages. Lawsuits up to $60,000,000 for serious injury or death are not uncommon. A property owner is negligent and liable if a claimant can prove that:

1. The owner had a legal duty to the claimant; and

2. The owner breached his duty; and

3. The owner's breach was the legal cause of the claimant's injury or property damage.

The Federal government has no sovereign immunity that exempts it from such lawsuits. The Federal Tort Claims Act (28 U.S.C 1346(b). 2671 et seq.) waives sovereign immunity. Federal employees are not individually liable except when acting outside the scope of their employment according to the Federal Employee Liability Reform and Tort Compensation Act of 1988 (the Westfall Act).

In a court case involving tree failure, two fundamental questions come up:

1. Was the manager negligent? Was there an inspection system? Was it prudent and performed to customary standards? Was it documented?

2. Was this particular tree inspected? Documented? Could the cause for failure have been detected in a reasonable and prudent inspection?

"Act of God" is not as good a defense as you might think. The same questions will be asked, and if there was detectable defects and no poor inspection, the manager may still be held liable.

Hazardous trees must be inspected and remedied or the landowner can be held accountable under premises liability. There is no excuse for not taking care of hazardous trees, which are defined as trees that have some defect or condition that makes them prone to failure and which are located in a place where they could cause property damage or personal injury should they fail. Dead, dying and diseased trees as well as trees with serious structural defects will fail at some point, because trees are living things and will someday either fail or be cut down.

Hazardous trees should be dealt with and safely removed by qualified persons as soon as they are identified. Property owners and managers have a responsibility and legal obligation to periodically inspect for hazardous trees and to immediately remedy the defects and unsafe conditions as soon as they are identified.

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info@branchmanagementtreecare.com