Guest Blog May #1 – Lawsuit for Fallen Tree
Last month, an Indiana family filed a personal injury lawsuit seeking compensatory damages after the death of their daughter last June. Their daughter was on a Girl Scout outing when, during a hike in the woods, a tree fell and killed her. The incident occurred on a Girl Scout of America-owned property, Camp Koch. The wrongful death lawsuit was brought against the Girl Scouts of Southwest Indiana by the deceased girl’s guardian on behalf of her parents and other beneficiaries. At first blush, one might wonder why the Girl Scouts organization should be held liable for a fatality arising out of a falling tree. After all, isn’t this an “Act of God”? In fact, this scenario is more common than you might believe, and liability should likely attach. Every landowner, including the Girl Scouts of Southwest Indiana, owe a duty to protect guests who are lawfully upon the property from known but hidden dangers. Though laws vary from state-to-state, generally, a property owner has a duty to protect against reasonably foreseeable injuries that may occur due to a latent risk on the property. Any wrongful death lawyer will tell you that this is basic tort law.
In order to prevail on such a case, called a premises liability claim, the plaintiff’s attorney must prove a couple of things. First, the wrongful death lawyer must prove that the falling tree posed a risk of injury and that the property owner knew or should have known about it. The property owner’s knowledge of the defect is established through proof of what is called actual or constructive notice. Actual notice occurs when the landowner is specifically aware of a danger posed by a hazard like a dead tree. Actual notice can be proven by evidence showing that someone, possibly an employee, a visitor or a government inspector, warned the Girl Scouts about the hazard posed by the dead tree. Constructive knowledge is proven by establishing that the tree had been dead for several months, and showed visible signs of death, thereby alerting a careful property owner that the tree posed a risk of harm. To prove constructive knowledge, the wrongful death lawyer will need to present testimony of an expert witness, such as an arborist, tree removal expert, botanist or biologist. In the past, I have used a college professor to act as an expert under similar circumstances with success. The expert will examine the remains of the tree to determine how long it had been dead and, using industry data, show that the tree had to have been dead for an extended period of time before it reached the level of decay necessary to cause it to fall. Once the landowner is on notice, they have a duty to remove the hazard by either cutting the tree down or warning about the danger.
In the past, I sued a private landowner whose property abutted a major interstate highway. The property owner had a large dead tree that was so close to the highway. When it fell, it fell into a lane of travel, striking my client’s car. The ensuing car crash resulted in severe traumatic brain damage to my client. I hired a university professor to inspect the tree and render an opinion about how long it had been dead, thereby putting passing motorists at risk. We prevailed on that personal injury claim. The injured client was compensated out of the landowner’s general liability insurance policy.
Similar claims have been brought by others in the past. For example, one recent case involved a large dead tree branch that fell on a picnic table, severely injuring a family. Because the dead limb had been present for a long period of time, and posed danger to an area frequented by lawful users of the property, the claim had merit.
If you or a loved one is severely injured or killed as a result of a property hazard, you should contact a personal injury lawyer in Cleveland, OH as soon as possible. It is imperative that the injury attorney have time to take photographs and preserve physical evidence for timely evaluation by experts.
Thanks to Mishkind Kulwicki Law Co., L.P.A. for their insight into personal injury claims and fallen trees.