# costumer lawsuit



## TXtreeman (Dec 26, 2006)

My question to anyone who can answer this for me. Can the costumer sue you the owner/salesperson of the company for damaged to their property for a tree that has fallen to cause damage,after you presented an estimate for tree trimming/removal of that tree? Also, if tree fell but you didn't bring up the hazzard issue to the costumer?


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## NYCHA FORESTER (Dec 26, 2006)

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TXtreeman said:



My question to anyone who can answer this for me. Can the costumer sue you the owner/salesperson of the company for damaged to their property for a tree that has fallen to cause damage,after you presented an estimate for tree trimming/removal of that tree? Also, if tree fell but you didn't bring up the hazzard issue to the costumer?

Click to expand...

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Did you submit an estimate to prune or remove the tree that fell and caused damage?

Did they specifically ask you to evaluate the tree (VTA or more invasive) that fell, to determine whether it needed to be pruned or removed?

If the tree fell (failed) and an competent Arborist would have identified that the tree was a hazard then you may be in some deep do...do....... I gather pictures were taken?


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## begleytree (Dec 26, 2006)

did you do anything to this tree prior to its failure?
seems to me that if all you did was write a free estimate for the work they asked about, but were not paid to do a consultation, and did not get the job in the first place, what recourse would they have?
anyone can sue anyone for anything. doesnt mean they will win.
-Ralph


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## ShoerFast (Dec 26, 2006)

As I hope you understand, I do not run a tree business, but can tell you that there is not much that can keep you out of the court room, and consultation of any form could give some court time, not saying I agree, and Judges should not have lifetime terms, but what can you do?

Best idea, get your ducks in a row, aligning your written parer work, and remembering what was exchanged, and find out were the judge lives if he would hear such a frivolous suit


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## Firewood Guy USA (Dec 26, 2006)

*Yes and No !!*



TXtreeman said:


> My question to anyone who can answer this for me. Can the costumer sue you the owner/salesperson of the company for damaged to their property for a tree that has fallen to cause damage,after you presented an estimate for tree trimming/removal of that tree? Also, if tree fell but you didn't bring up the hazzard issue to the costumer?



Its my understanding, If your insurance policies( either contractors liablity insurance and or Auto insurance) that has or covers property damage. You can't be sued if you have property damage coverage. If the damages is over what your policy covers, then you will have to make up the difference with your insurance company. If you have no insurance for property damage, Yes the consumer and or the customer's insurance company can sue you and all involved for their total damages and then some. Furthermore, just call your insurance agency or read your insurance policy. As to explaining the hazzard issue to the customer, that has no baring on that issue. Its like a no brainer. I'm assuming the customer called you. So they knew the tree was a hazzard.
If this customer is or has filed a claim against you of your company, just notify and turn the claim over to your insurance agency. Since you was only there for an estimate. I dought your insurance company will pay the claim (e.g. false claim)


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## M.D. Vaden (Dec 26, 2006)

TXtreeman said:


> My question to anyone who can answer this for me. Can the costumer sue you the owner/salesperson of the company for damaged to their property for a tree that has fallen to cause damage,after you presented an estimate for tree trimming/removal of that tree? Also, if tree fell but you didn't bring up the hazzard issue to the costumer?



If you did not do any work, and only did a free estimate, how could you be liable?

It's not your tree. It's not your workmanship.

Is there anything in writing on the estimate that would pertain to tree damage?


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## begleytree (Dec 26, 2006)

M.D. Vaden said:


> If you did not do any work, and only did a free estimate, how could you be liable?
> 
> It's not your tree. It's not your workmanship.
> 
> Is there anything in writing on the estimate that would pertain to tree damage?



god I hate this but I have to agree with Mario. All I can see that you did was made them negligent, since after talking to you, they knew the tree needed work.

now if it was in bad shape and needed work, and they approved the work but you haven't gotten to it before it failed...I dunno. could be trouble then, if you worked on non-emergency stuff ahead of a failing tree.

but hey, we're all guessing here. you didn't give enough details and haven't been back on to answer our questions yet.
-Ralph


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## tbst (Dec 26, 2006)

*Work*

Did you guarantee to do the work at by a certain date, did not complete the work by that date, and the tree fell after the guaranteed date?


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## jonseredbred (Dec 26, 2006)

begleytree said:


> now if it was in bad shape and needed work, and they approved the work but you haven't gotten to it before it failed...I dunno. could be trouble then, if you worked on non-emergency stuff ahead of a failing tree.
> 
> but hey, we're all guessing here. you didn't give enough details and haven't been back on to answer our questions yet.
> -Ralph



especially if telling the customer the tree was an imminent threat was a selling factor of the removal contract.


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## jonseredbred (Dec 26, 2006)

TreeCo said:


> It's called "errors and omissions".
> 
> If you see or should have seen a hazard and did not put it in writing you just might be out of luck.



only if he is a certified arborist. A certified arborist would be held to a different standard than a regular old tree service owner.

Errors and Omissions is mainly only available to proffesional companies, doctors, lawyers, engineers and certified arborists who do consulting work.


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## M.D. Vaden (Dec 26, 2006)

jonseredbred said:


> only if he is a certified arborist. A certified arborist would be held to a different standard than a regular old tree service owner.
> 
> Errors and Omissions is mainly only available to proffesional companies, doctors, lawyers, engineers and certified arborists who do consulting work.



That sounds like how the landscape architects handle their work.

I think their errors and ommissions does not pertain to an estimate.


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## TXtreeman (Dec 27, 2006)

Thanks to all for your opinoins and input. This issue hasn't happened to me. I was just asking for answers if the issue ever came up. To be more specific or rephrasing my questions are.(1) If I recieved a phone call for an estimate to trim a tree and I noticed a 2nd tree as a hazzard and I happen to bring up the issue to have it handled in writting, but the costumer refuses to take care of the problem. Would I be held liable for the expense of the damage? (2) Same as above but, I only happen to verbally bring that up to her attention? Hope this is clear now.


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## ShoerFast (Dec 27, 2006)

I got my degree in CYA working line maintenance for an extremely busy Commuter Airline. In a way, some what the same as the blame game would start if there were a mishap. Being constantly competent could set up a good day of defence witnesses. Good paper trails are a must, could you use digital pictures in your documentation?

Plaintiffs don't change, there all rubbing there palms together chanting "oh boy is this going to be great!" and they look like hungry rats, CYA ,,,,,,, again, not a tree service, just .02 cents


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## Firewood Guy USA (Dec 27, 2006)

TXtreeman said:


> Thanks to all for your opinoins and input. This issue hasn't happened to me. I was just asking for answers if the issue ever came up. To be more specific or rephrasing my questions are.(1) If I recieved a phone call for an estimate to trim a tree and I noticed a 2nd tree as a hazzard and I happen to bring up the issue to have it handled in writting, but the costumer refuses to take care of the problem. Would I be held liable for the expense of the damage? (2) Same as above but, I only happen to verbally bring that up to her attention? Hope this is clear now.



I think you answered your own question, " ....the customer refuses to take care of the problem or problems that you suggested to be taken care of.. " Wheres the liablity there ?? Think, contact your insurance agency for your answer, unless you don't have commercial insurance !!


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## jonseredbred (Dec 27, 2006)

TXtreeman said:


> Thanks to all for your opinoins and input. This issue hasn't happened to me. I was just asking for answers if the issue ever came up. To be more specific or rephrasing my questions are.(1) If I recieved a phone call for an estimate to trim a tree and I noticed a 2nd tree as a hazzard and I happen to bring up the issue to have it handled in writting, but the costumer refuses to take care of the problem. Would I be held liable for the expense of the damage? (2) Same as above but, I only happen to verbally bring that up to her attention? Hope this is clear now.



scenario 1, no way you are liable if they dont want work done. but homeowners wont cover the damage if you did identify a hazard on your estimate and the homeowner did nothing.....................


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## Xtra (Dec 29, 2006)

I atteneded a seminar held by Dr. John Ball and he kinda touched on this subject. He strongly recommends that every estimate/contract include this . . .

"This site visit included only a visual inspection of accessible components for the purpose of providing a price for requested services and shall not be considered a tree risk evaluation. Risk evaluation involves more extensive inspection and are conducted as a separate work item at an additional charge."


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## Quercus34 (Jan 3, 2007)

Xtra said:


> I atteneded a seminar held by Dr. John Ball and he kinda touched on this subject. He strongly recommends that every estimate/contract include this . . .
> 
> "This site visit included only a visual inspection of accessible components for the purpose of providing a price for requested services and shall not be considered a tree risk evaluation. Risk evaluation involves more extensive inspection and are conducted as a separate work item at an additional charge."



That's a good idea. You should also have similar one for any other inspections/ evaluations you do. Just because a tree is "safe" today does not mean in will be tomorrow. There are to many things that can happen to change it's condition that you have no way of knowing about.


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## rfwoodvt (Jan 5, 2007)

*Couple of key phrases*

Hi All!

Couple of thoughts here and they revolve around the phrases "duty to act" and "due dilligence."

first if ours is to be considered a "profession" then we can rightly be considered experts and knowlegeable of things the average person might not. That said, any time we walk onto a person's property if we see anything that could be a problem we have a duty to act and to inform the customer.

For example, if Mrs Jones wants us to estimate pruining her prized _Celtis occidentalis _ and we notice that her _Acer saccharum_ is riddled with rot, conks and hollows and show a opening and closing crack running the lenght of the bole then we are obligated to let her know that the defects are there and that the may spell trouble.

What that translates into is that whenever we step onto someones property, we must be attuned to such things and be prepared to inform the customer.

This also makes good business sense as it opens the door for potentially more work.

So, essentially, especially those of us that carry certifications, we are obligated to note and present such items.

Now, there will be things we miss. And, we may be consdered experts but our own limitations and spot on the learning curve may prevent us from being able to catch these things. That being the case quite often, you should *always* give the customer a written report when you go on thier property. Generally this is in the form of an estimate. Wording in the estimate will serve best if it states something that Only the trees listed were observed, no other trees were looked at or considered.

Our estimates include the following:

_Only trees listed on this proposal are under consideration. Any work or trees not explicitly listed or authorized in this proposal is excluded from this proposal. Evaluations, opinions of tree conditions and defects of trees listed herein are based upon a naked eye, ground view survey. Customer is advised that more detailed assessments may be available for an additional fee from Hivernant Arborists or another tree care provider. Hivernant Arborists does not provide all levels of assessment of trees. _

Something like this should be reviewed by your own attorney before you put it in place.

Then there is the E&O insurance....any time you offer an opinion to a customer or options for them to choose from you are likely to forget something important. Kinda like , " the tree should come down" but you forgot to add "immediatly" or "because it is likely to be blown over in the next thunder storm." 

The keys are

you need to be very clear as to what trees you ARE and ARE NOT looking at
You need to let the customer know that more detailed inspections are available, for a fee, and whether or not you do them.
any time you offer an opinion, you have sold your soul.

Part of our estimating process is simply that we do estimates for known and obvious work on specific selected trees and no others. If they want opinions and options on those or thier "trees" then that is a billable service call. We prepare a contract for that and it details exactly what they will get.


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## toscottm (Jan 8, 2007)

TXtreeman said:


> *Can* the costumer sue you the owner/salesperson of the company for damaged to their property for a tree that has fallen to cause damage,after you presented an estimate for tree trimming/removal of that tree?



Treeman;

I have two answers. The first, which directly answers your question as asked above, is 'yes'! People 'CAN' sue you for whatever they want to sue you for. If right now I want to sue you with the allegation that your aligator bit me, I can sue you (despite the fact that you probably don't own an aligator).

Many of the answers to your post have been by those who with good intention are attempting to play 'judge & jury' based on the information provided. It is important, very important, for arborists (or anyone for that matter) to recognize that you can't simply 'decide' what people should be allowed to sue you for. If they want to sue you, they can.

Of course, once sued, now you can present your defence case. The defence may be presented on the basis that no duty of care was owed or the standard of care was not breached. In cases where it is alleged that an 'error or omission' has occurred or a 'flaw' in your workmanship and this results in some harm (damage, injury or financial loss) to your customer (or others), as a professional it may be quite difficult for you to use as a defence that it was 'beyond my expertise' or 'beyond the scope of the client's instructions', etc. You are the expert (or held yourself out to be) and there are many legal responsibilities that apply to you. Included is often an obligation to point out matters of potential concern or hazard that are apparent to you, even when the matter was not part of the customers scope in consulting you.

My comments are provided in the scope of experience as an insurance broker only (I'm not a lawyer) and are based from Canadian perspectives. The principles are likely consistent to your jurisdiction. Of course, any time there is a suggestion or reasonable indication that a law suit is likely to arise, you should always consult a lawyer (and report to your insurer). If a case is indeed 'brewing', get legal help without delay!

Best Wishes!

Scott


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## toscottm (Jan 8, 2007)

*Judge & Jury: Be Careful!*



jonseredbred said:


> ...no way you are liable...



Jonseredbred;

Be very careful with the kind of thinking indicated above. Firstly, recognize that the original question was 'can someone sue'. The question wasn't 'do you think I would be liable'.

In Canada (and I assume also in the U.S.), people can sue with the allegation that they have been 'wronged'. Sometimes the allegation is legitimate, sometimes it is highly argumentative, sometimes it may be malicious and sometimes it is just downright frivilous, however they 'can' still sue!

All to often, we tend to play 'judge & jury'. It can be very risky to presume that responsibility is not owed to the public or perceive that the public (customers or non-customers) can't sue. Even when they did not purchase your service, customers can still sue.

In my work as an insurance broker specializing in insurance for arborists, I often need to make recommendations for coverage that sometimes the arborist chooses not to buy. If a situation arises later and no coverage is in force for whatever that particular circumstance, the client may choose to sue me. I can't make the law suit 'go away' with the comment that I shouldn't be responsible because my recommendation wasn't heeded. A legal defence will need to be presented. In such a defence, I'll need to present evidence of my 'recommendation' and the client's decline to heed this advice. A successful defence will need to show a court that a *reasonable* attempt to warn the client was provided. By 'reasonable', the law expects that one did what someone with similar qualifications and experience would have done if faced with the same situation. If I have done less than someone else 'in my shoes' would have done, I'm likely going to be found responsible.

We all need to recognize that our 'views' on responsibility mean very little. It is the 'judge & jury' that needs to decide if anyone should be liable.

Respectfully!

Scott


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