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ARTICLE ID 29409

- ALLEGED NEGLIGENCE OF DEFENDANTPROPERTY OWNER IN FAILING TO TRIM BRANCHES OF TREE - ALLEGED NEGLIGENCE OF CITY OF FRESNO IN FAILING TO TRIM TREE EXTENDING OVER PUBLIC PROPERTY - ELDERLY PLAINTIFF STRUCK BY FALLING TREE LIMB - FRACTURED RIGHT TIBIA AND FIBULA.

Fresno County, California

The plaintiff brought the subject action against his next door neighbor and against the City of Fresno for injuries suffered when he was struck by a falling ________ pound branch from a tree located on the defendant neighbor’s property. The plaintiff contended that the defendant neighbor was negligent in failing to properly trim the tree limb which, prior to the accident, precariously extended over the public sidewalk and into the street. The plaintiff further contended that the defendant City had both actual and constructive notice of the dangerous condition of the subject tree, which affected the public property due to the fact that a portion of the tree extended over the City’s sidewalk and the City’s street. The plaintiff’s wife, who witnessed the accident, submitted a claim for negligent infliction of emotional distress.

The subject accident occurred on July 25, ________, at approximately 9:00 a.m. while the plaintiff was walking from his home to a nearby convenience store. The plaintiff and several friends and relatives testified that prior to the subject accident, the plaintiff warned the son of the defendant property owner of the danger posed by the hanging tree limb and advised that it should be removed. The plaintiff further claimed that he contacted the City of Fresno before the date of the accident and notified them of his belief that the tree limb was dangerous and posed a hazard to pedestrians. The plaintiff maintained that on the morning of the accident, he observed a City tree trimming crew around the corner from his home and went over to speak to the crew leader.

The plaintiff alleged that he told the crew leader that he thought the tree limb was dangerous and was about to kill someone and asked him to cut it down. The plaintiff related that he was advised by the crew leader to call the office of Parks and Recreation which would put him on a list for service. The plaintiff maintained that he was persistent and that finally, the crew leader agreed to look at the tree on his own time during his break.

The plaintiff returned home and his wife called the Department of Parks and Recreation to place a tree trimming request. The City had a record of this call being received on the morning of the accident. The plaintiff maintained that he then proceeded to walk around the corner to a nearby convenience store. The testimony indicated that the plaintiff left the sidewalk and proceeded to circumvent the area into which the tree limb extended, as was his customary practice, when the limb unexpectedly gave way. As it broke, it started to fall into the street. The limb was between 30 and 35 feet long and weighed in excess of ________ pounds. The plaintiff commenced running to get out of the way of the falling limb, but was unable to move quickly enough to avoid being struck by the limb. The plaintiff was knocked to the ground, breaking the tibia and fibula in his right leg.

The plaintiff’s tree experts contended that there was an obvious crack, or gap in the connective tissue between the trunk and the limb of the tree that had existed for a number of years prior to the date of the accident which was readily visible upon inspection. Furthermore, the plaintiff’s tree experts contended that this tree had a basal co-dominant stem, with included bark, which constituted an inherently weak structural arrangement for the tree. The plaintiffs testified that when they were unsuccessful in persuading their neighbors to trim the tree, they hired a tree service at their own expense to trim that portion of the tree which extended into the air space of the plaintiff’s property. The plaintiffs further contended that another limb had fallen from the subject tree six to twelve months earlier, which allegedly placed the defendants on constructive notice of the dangerous condition of the tree. The plaintiffs’ tree experts supported this position.

The defendant neighbors denied that the plaintiff had ever complained to them about alleged "safety" concerns regarding the tree. They did admit that the plaintiff had previously complained about the tree dropping pine needles into his yard and ruining grass, as well as large roots which broke up the cement strip running along the property line. The defendants also admitted that in September of ________, the plaintiff had hired a tree trimming company to trim their pine tree insofar as it extended over any portion of the plaintiffs’ property. However, the defendants denied that they were ever asked by the plaintiff to have this same tree service trim the limb which ultimately fell on the plaintiff. These defendants maintained that they assumed the plaintiff was trimming their tree solely to alleviate his concern regarding the tree dropping debris on the plaintiff’s lawn. The defendants admitted that the tree was the largest in the neighborhood, but asserted that they did not think that the size of the tree constituted an undue hazard. The defendant neighbors further maintained that they did not assume that the falling of one of the limbs during a storm was indicative of a problem with the tree. The defendants asserted that they were unaware of the significance of the architectural arrangement of a basal co-dominant stem on a pine tree. They admitted that the photographs taken after the accident revealed the fact that the limb was not strongly connected to the truck of the tree.

However, they denied having made observations to this effect prior to the accident. The defendants contended that the crack, or gap in the connective tissues between the tree limb and the tree truck constituted a latent defect which was not readily apparent.

The defendant City of Fresno contended that this was a private tree on private property and that it had no duty to inspect the tree. The City contended that it had a reasonable inspection program for the maintenance of City trees on boulevard strips. It further contended that although the subject tree may have had a structural deficiency, it was not apparent until after the accident. The City admitted that the plaintiff telephoned to request trimming of the tree on the morning of the accident, but denied that the plaintiff had called to report an imminent hazard and asserted that the plaintiff gave no specific reason at the time of his request. The City further denied that it had been contacted by the plaintiffs about the tree on any date before the accident.

Following the accident, the plaintiff was hospitalized and attended to by his treating cardiologist and an orthopedic surgeon who cared for his fractured leg. The plaintiff, who suffered from a pre-existing heart condition, became depressed while in the hospital and was seen by a psychiatrist. Upon discharge, his physicians recommended that he be admitted to a rest home because of his age and deteriorating physical condition. He was not ambulatory, but was taken home to be cared for by his wife. He remained bedridden and was treated with a number of medications for his depression. He was again hospitalized in March of ________, because he was experiencing hallucinations which were discovered to be the result of an adverse reaction to his anti-depressant medication. The plaintiff’s wife was diagnosed as suffering from severe "stress syndrome," had contemplated taking her life, and was referred to a psychiatrist. The plaintiff’s expert psychiatrist maintained that the plaintiff husband should be placed in a rest home, if not for his sake, then for the sake of his wife.

The jury was instructed that the life expectancy of a normal male in the plaintiff’s age bracket was seven years and the plaintiff’s attorney asked the jury to assume that the plaintiff would live another five years. The plaintiff maintained that the estimated cost of rest home care for the remainder of the plaintiff’s life expectancy was $________. The plaintiff’s expert psychiatrist testified that the plaintiff husband would require continuing psychiatric care for a minimum of an additional 52 weeks at an estimated cost of $________. The plaintiff estimated that the future cost of necessary medications stemming from this accident totaled $________. The plaintiff’s medical experts related the plaintiff’s present complaints to the subject accident, explaining that a trauma of this nature can be devastating to an elderly person and in the plaintiff’s case, started a downward spiral in his physical condition. The defendants contended that the plaintiff’s continuing problems were the result of his pre- existing condition and were unrelated to the subject accident.

The defendant further contended that the plaintiff had a history of taking sedative medications prior to the subject accident and both plaintiffs had attempted to conceal this history from defense attorneys. The jury found for the defendants. Plaintiff’s plant pathologist/tree expert: Alex Shigo from Durham, N.H.

Plaintiff’s consulting arborist: Walter J. Barrows from Clovis, Ga. Plaintiff’s neurologist: Harvey Edmonds from Fresno.

Defendant property owner’s expert plant pathologist: Mark Steinberg from Fresno, Ca. Defendant City’s tree expert: Richard Harris, former president of the International Society of Aboriculture. Defendant City’s in-house tree experts: James Freer, Jim Tomason, Dave Hillum and Nathan Raymond Bolin, all from Fresno. Huber vs. Harper, et als. Case no. ________-0; Judge Frank Creede, 5-19-88. Attorney for plaintiff: Timothy V. Magill of Nuttall, Berman & Magill in Fresno, Ca.; Attorney for defendant City: Robert Gabriele, Asst. City Attorney in Fresno, Ca.; Attorney for defendant property owners: Daniel P. Lyons of McCormick, Barstow, Sheppard, Wayte & Carruth in Fresno.

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