An Extreme, If Not Perfect, Storm This Past Weekend: Anyone Liable?
Amongst the most compelling aspects of this weekends historically strong storm is the number of fatalities that resulted from falling trees. Six people were reported to have been killed as a result of the storm that knocked down hundreds of trees in the New York City area. Any attempt to sue the owner of the trees for personal injuries or wrongful death will likely be met with the defense that the storm was so unusually violent a wind gust of hurricane force (75 MPH) was recorded at Kennedy Airport that the tree falling was an Act of God for which no person can be blamed negligence. But even conceding the unusual circumstances, that may not be the end of the case.
Property owners have a duty to maintain their property, including trees situated thereon, in a reasonably safe condition. This duty requires property owners to make reasonable inspections of the trees on their property and to take action if a dangerous condition is actually noticed, or, perhaps more commonly, should have been noticed in the exercise of due diligence. Thus if there is evidence of a dead or dying tree, or a tree in a precarious condition subject to toppling, the property owner must take action. High winds and a lot of rain might not be a defense if the property owner, before the storm, should have taken action to eliminate a dangerous condition of a tree.
In order to investigate whether a property owner might have been negligent, it is of great importance to have the tree, or whats left of it, inspected by a qualified expert, such as an arborist, immediately. An arborist could look for evidence of the trees health, such as the presence of fungus that only grows where a tree is dying or dead.
For example, a case our office successfully handled involved a tree that fell onto a car travelling on the Palisades Interstate Parkway in Rockland County, New York. Unlike the present situation, the tree fell at a time when there was barely any wind at all. We retained an arborist to examine the remaining tree, and he noted the presence of fungus and other telltale signs that the tree had been dying for years, which should have given New York State, the owner of the parkway, notice to take action. One of the more noteworthy aspects of that single vehicle accident case came during our deposition of one of the States witnesses who testified that the method of inspecting for dead or dangerous trees consisted of him looking at the trees next to the parkway while he was driving by at the posted speed limit of 50 MPH. The States procedures have since fortunately been improved.
Our office also successfully handled a case in which a woman was injured on a day with wind gusts of 60 MPH were recorded. The high winds apparently caused the top of an outdoor garbage receptacle to become dislodged and go flying down the walkway leading to the entrance of a building where our client worked. The defense included an argument that the ferocity of the wind was so unusual that the flying off of the cover could not have been anticipated. However, our investigation, including the retention of an expert architect, revealed the existence of other issues indicating that the building owner and maintenance company had been negligent, and the case was settled during a mediation.
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