Creeping Normalcy

This matter came to me as an insured was named a defendant in a multimilliondollar personal injury claim. The matter regarded a landscape installer who allegedly failed to properly secure a newly installed tree in a new landscape. The tree failed during a significant weather event at a theme park. The theme park was joined in the suit as were other parties.

My retaining defense attorney called me exactly 13 minutes before plaintiff's attorney called me for the same assignment. The stage was set as both law firms had used me in the past, and while there is great capital in working under oath in a scenario where both law firms have used the same expert, there is also great debt associated with the scenario.

The plaintiff walked from the theme park bus station to her car in an adjoining parking lot. A microburst of foul weather set upon the area. The tree failed and fell upon her. She became a paraplegic for the rest of her life. Daunting indeed.

 I examined the subject tree and found new roots had developed, which contradicted testimony that the tree had not yet established in the landscape. The matter then went to many other associated facts. Were the tree braces installed correctly? Should there have been three braces or four installed to hold the tree upright in a secure fashion? The tree industry typically used three braces to support the tree during its establishment period of time; however, an artist’s hand sketch of tree supports in a national publication showed four braces to support a tree during its establishment time. Calls were made to the artist who drew the rendering. The artist claimed there was no reason that four braces were illustrated instead of three braces. Nonetheless, it was obvious that this illustration would go before a jury. An engineer testified that the same structural support could be realized from three braces as could be realized from the use of four braces.

The actual braces used came under close scrutiny by experts involved in this matter. One expert noted that the area at which a unifying anchor brace had been placed was on the wrong side of the above ground support brace. This was a significant discovery, but not as significant as the fact that one nail that connected the anchor with the brace itself had missed its mark completely.

The cork was coming out of plaintiff's champagne bottle.

Mysteriously introduced just before depositions was a 15-second video garnered from Facebook. Someone had taken a picture of their family exiting a theme park bus. In the background was the subject tree. The weather was fierce with driving rain, and the subject tree shook back and forth violently as if being shaken by a giant unseen hand. This excited my curiosity. A tree that fails due to lack of support simply falls to the side of its weakest support system. In this instance, the tree shook back and forth. And the microburst weather event had nothing to do with that fact, as the video clearly showed the winds and driving rain coming from one direction only.

During my deposition, I was presented with photographs that I had yet to review; they had not been turned over during the discovery process. I found myself staring at photographs that I had never seen, except for two: I had seen these photographs; albeit, not of the incident scene, some 25 years prior.

It was during that stage of my involvement with the green industry as a landscape installer and common area maintenance contractor. As such, I had installed and maintained irrigation systems for over two decades, laboring many hours on my hands and knees over numerous irrigation breaks that had to be repaired.

Of particular note, my curiosity was again excited when I noted foam covering the entire area of the subject installed palm tree and its immediate surrounding environment. This foam was a phenomenon caused by the ever-present high pressure of water driving into soils. The high pressure came from the irrigation system source of water that was always in the on position but only worked when an irrigation timeclock told it to do so. Every expert involved in this matter also looked at the same pictures with the foam surrounding the subject tree and its immediate growing environment. And every expert turned the pictures over, moving on to a new picture that might demonstrate the actual cause of failure and thereby substantiate their opinion(s).

This high pressure per square inch (psi) caused foam to develop, but only from very small cracks in a PVC irrigation pipe. As a minute break in the PVC pipe, which carried the water from its source (a deep well or city or county water), the pressure slowly, minute by minute, day to day, perhaps for a month or more, churned the soils and mixed soil particles into a frothy foam.

And that frothy foam was evident in the pictures of the subject tree in the before situation of its failure. Below the ground, undetectable by anyone, was a pinhole breach in the PVC pipe. This minuscule breach steadily ate away at the structural integrity of the very soil that held the root ball of the subject tree in place.

As the tree failed, not from lack of support, but from the soil under and around the root ball completely giving way, it shook violently back and forth following the soil's profile churning about the root ball area below ground. This irregularity of a tree failure was consistent with a soil failure, not a structural root issue or a support issue. Nothing could have stopped the subject tree from failing when the soil around the root ball itself failed. No structural support could have kept the subject tree in an upright position.

The pieces of a very difficult puzzle had been put together and a new picture regarding negligence had been created.

And a woman, exhausted from a long day at a theme park, trudged along a sidewalk next to a newly installed tree. She was no doubt concentrating on getting from the bus to her car during a micro burst of weather. Below ground, unbeknownst to anyone, a pinhole breach in a PVC pipe had been steadily eroding the soil around the root ball of the subject tree. And that the precise moment that the woman found herself under the failure footprint of the subject tree, the last second of constant eroding of the soil gave way. The tree met the woman at the precise second that cost her irreparable damage to the rest of her life. Two seconds more, on either end of the spectrum, either in the before situation or in the after situation of the tree failure, and the woman would have talked for the rest of her life about the near miss she encountered while on the vacation of a lifetime. 

The matter settled after my deposition. Both plaintiff’s attorney and defendant's attorney have engaged me for assignments since the time of this matter. We have all, individually and collectively, talked about the fate that drove the outcome of this tragedy.

Have you dealt with this type of incident or claim? What have your experiences been like here?

About the Author:

I serve as an expert witness in the areas of trees, landscapes, and related “Green Industry” matters. I have been accepted as an expert witness in over 800 matters in small claims, civil, federal, criminal, and eminent domain courts of law.

From product liability, personal injury, wrongful death, and eminent domain, my representation is almost always 50-50 plaintiff/defendant. My opinion has never been stricken or restricted.

I have been established now for over 50 years, having been trained in eminent domain by the country’s finest property rights attorneys. Eminent domain is an exclusive area of law that deals with property rights and has its own legal precedents that address specific legal decisions regarding trees and plants.

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