Nov. 1 2002 12:00 AM

It?s a beautiful day, and you decide to take advantage of the sunshine and fresh air by taking a walk, maybe just in your neighborhood, or in a nearby park. As you?re strolling along, enjoying the greenery, you hear a sharp, cracking sound, and look up to see a branch falling from a tree down the road, smashing the windshield of the car parked beneath it.

During the hot summer weather, the phenomenon known to ar-borists as ?summer limb drop? takes place in numerous species of trees, including the common oak and eucalyptus trees. This type of limb drop generally occurs in the warmer climates where the newly formed branches grow very fast. In some cases, improperly topped tree branches are a major starting point for this type of limb drop. In other cases, cracks or decay may be a factor.

The jagged end of the limb
For example, in northern California a large limb that fell onto the highway involved limb drop. It was dark at the time and had been raining. Tragically, the jagged end of the limb broke through the windshield of a passing car, killing the driver and seriously injuring the passenger.

The court determined that the tree was part of a row of eucalyptus trees planted along the highway, and that the defendants knew that limbs had been falling from these trees for years. They also knew that the particular limb with which the plaintiffs? car collided on that dark night had previously extended over the highway for some 30 feet.

A tree surgeon familiar with the area testified that the limbs of the tree involved were healthy and that he saw no evidence of rot, decay or disease. He did state, however, that in Napa County, California, eucalyptus trees grow very fast and become ?rangy? ? or, as Webster?s New World Dictionary so aptly defines that word ? ?long-limbed and slender.? The tree surgeon added that these eucalyptus limbs have a tendency to break during the hot days of summer because of the excessive flow of sap and, in the early fall, with the first rains and winds; and that the trees will drop their limbs ? even good, healthy ones.
He further testified that the standard method of preventing eucalyptus trees from becoming hazardous is to top them and shorten their limbs so as to reduce the amount of leverage at the points where the limbs are apt to break; and that he performed this service for 10 or 15 clients a year.

The defendant testified she had been told that eucalyptus trees drop their limbs. She added that, as far as she could see, her trees were healthy. However, she admitted that she?d had no work done on them by a tree surgeon for five years, although she well knew that eucalyptus limbs do fall at times.
The court found that the row of eucalyptus trees planted alongside the highway constituted a ?non-natural or artificial condition? and stated the following rule: ?A possessor of land is subject to liability for bodily harm caused to others outside the land (which included the adjacent highway) by a structure or other artificial condition thereon, which the possessor realizes or should realize as involving an unreasonable risk of such harm if ?(a) the possessor has created the condition or ?(b) the possessor when he takes possession knows or should know the condition which was created before he took possession.?
As the court pointed out, the distinguishing factor in this case is the natural propensity of healthy, untrimmed eucalyptus limbs to fall to the ground, and the defendant?s knowledge of such propensity. The rule in California is that a landowner is liable for conditions occurring where he fails to exercise reasonable care to prevent an unreasonable risk of harm to users of the highway from trees on his property.

On a rope swing
In another case, the plaintiff, an 11-year-old minor, was injured while playing on a rope swing. The swing was located on property owned and maintained by the defendants. The rope swing was attached to an oak tree in a recreational area on the defendant?s property. Six children jumped on a pole attached to the swing, and the supporting branch gave way, striking the plaintiff.

Plaintiff contended that the defendants recognized the danger posed by the swing in the oak tree but failed to take adequate steps to remove the swing. It was also contended that, if the defendants had commissioned periodic inspections of the tree, such inspections would have revealed that the branch supporting the swing was rotted.

An expert witness testified as to the dangers posed by older oak trees due to their propensity for rot and for shedding branches. He said many owners and managers of properties, with similar recreational use, schedule regular inspections on at least an annual basis. The expert witness also testified that particular training would be necessary to identify signs of rot in limbs, which some nurserymen, arborists and foresters may not have sufficient training to recognize.

The defendants contended that they owed the plaintiff no duty of care as he was a recreational user of the subject property; that they had no notice of the rotted condition and no information suggesting that they should conduct annual inspections of the tree; and that they took reasonable steps to prevent injuries on their premises.

The plaintiff?s attorney asked the jury for a finding of liability against the defendants. During settlement talks, the plaintiff demanded $500,000. The defendant offered to settle for $99,000. The jury was out for 45 minutes after a four-day trial and returned a verdict for the defendant. The injured child received nothing.

Legislative intent
The determinative factor in this case was most likely a section of California law that limits the duty of care owed by property owners to persons using the property for designated recreational purposes. These include tree climbing, fishing, hunting, camping, water sports, hiking, riding, rock collecting, nature study and viewing or enjoying scenic, natural or scientific sites.

The purpose of the law is to encourage landowners to allow members of the general public to use their land for recreational purposes without incurring liability for permitting use.

It is highly probable that, without the defense of this section, the defendant in this case would have been found liable under the circumstances, in view of the expert witness testimony regarding the dangers posed by older oaks, coupled with the fact that many owners and managers of properties with similar recreational use schedule regular inspections on at least an annual basis.

It should also be noted that this section does not limit liability which otherwise exists for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. Nor does it limit liability for injury suffered in any case where permission to enter for the recreational purpose was granted for consideration, i.e., admission fee, or to persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.

It should be further noted that public entities (municipalities such as cities and/or counties) are not protected by this section. Only private landowners are protected. This is in keeping with the legislative purpose to encourage private landowners to allow the general public to recreate free of charge on their property without risk of liability.

Not just private landowners
Today, it is the domain of the consulting arborist to provide professional evaluation and analysis of specific trees or plants involved in any given case. Often, this may require sophisticated forensic techniques to determine tree health or condition at the time of the incident and the value of the tree, if that is a factor in the case.

Increasingly, it is not just private landowners who are involved in litigation over trees. Public entities such as state agencies, cities, counties and other governmental bodies are frequent parties to litigation arising out of incidents relating to trees.

Parties maintaining hazardous conditions on their premises are harboring potential for liability. Professional arborists are being called upon with increasing frequency to advise landowners regarding awareness of potential liabilities and appropriate remedies.

Whether it be an insurance claim for a car damaged by a summer limb drop, a resulting lawsuit, a casualty loss assessment for tax purposes or expert testimony before a judge or jury, the specialized forensic techniques employed by arborists to make proper findings are available to modern litigators during both summer and winter.

November 2002