# Wrongful death lawsuit filed



## NetreeLady (Mar 3, 2005)

From our local news:

Thursday, March 03, 2005
By LORI STABILE
[email protected] 


PALMER - The wife of a man who was killed last summer when a rotted tree fell on him while he was operating a motorcycle on Route 67 has filed a wrongful death lawsuit against John Lizak Inc. and the Massachusetts Highway Department.
The lawsuit was filed Friday in Hampden County Superior Court. Susan Daley's Springfield lawyer, Robert A. DiTusa of the law firm of Alan R. Goodman, said both parties are potentially responsible for the death of James E. Daley Sr. 

"It is our feeling that if you own the land and are going to profit from ownership of the land, you have a responsibility to maintain it," DiTusa said Tuesday. 

"In this case, even a cursory inspection of the property would have revealed the rotted and decayed tree well in advance of the accident. Given the terrain, it should have been obvious that the dead tree would wind up in the street," he said. 

The state Highway Department is named in the suit, because the department has a responsibility to make sure there are no defects in the roadway, DiTusa said. 

The tree was close enough to the roadway to make it unsafe, he said. DiTusa said an expert who looked at the tree determined it had been dead several years. 

DiTusa said Daley was a father of three. He worked as a quality control inspector for DFF of Agawam. 

"They want to be compensated for the loss of a husband and father," DiTusa said. 

Contacted this week, Lizak, a major landowner in Palmer who owns hundreds of acres, referred questions to his lawyer, Warren Thompson, who did not return calls for comment. 

A Feb. 2 letter from James N. Blodgett, assistant chief counsel for the state Highway Department, to DiTusa said the department investigated the claim and has determined the commonwealth is not liable for damages. 

State highway spokesman Jon Carlisle said the department "does not comment on pending legal actions taken against us." 

The suit said Daley was riding his 2004 Harley Davidson motorcycle south on Route 67 (Boston Road) about 8:30 p.m. when the tree fell, knocking him off. He was pronounced dead at the scene. He was about 1,000 feet north of 442 Boston Road. 

"It's unusual, but you would be surprised by the amount of injuries caused by trees that fall," DiTusa said. "You see a lot of cases where trees will fall and people will run into them. ... I don't see it as a freak accident at all." 

I'm sure Erik will remember doing a quote last year for an older gentleman in Palmer who was trying to have the town take down a nearly dead medium sized maple tree in front of his house. He would have done it himself but was a retiree on a fixed income and it IS a town tree. The town told him to get estimates from local tree services and submit them but that they couldn't afford to pay more than $600 because the guy down the street wanted one taken down too and they only had a budget of $1500!!!!!! Sounded odd to me. Never heard back from him, wonder if it ever got done...


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## JonnyHart (Mar 3, 2005)

Does the act of god thing just refer to property damage or inury and death too?


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## Stumper (Mar 3, 2005)

Johnny, If a healthy tree falls because of a weather event it is considered an "act of God" for ins./legal purposes. If a nasty, long dead, rotten tree falls in a developed area then NEGLIGENCE is the issue. If a reasonable person would have recognized a potential hazard then neglecting to take care of it may be punishable both civilly and criminally.


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## JonnyHart (Mar 3, 2005)

I understand. I hope the man's family will be compensated, it hurts to hear about these kind of things.


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## Ekka (Mar 4, 2005)

It's about time that people start to take responsibility for their vegetation. I agree that if it were clearly obvious that the tree was defective the owner is then neglegent.

I have often quoted and given advice to owners on their trees to be scoffed at with the classic "but insurance will cover it". A huge crappy gum tree with major defects fell onto the back neighbours house and totally demolished it, the neighbours were luckily on holidays and no-one was hurt.

The irony is that the victim who had his house demolished had to make the insurance claim and the owner of the tree (the back neighbour) got it removed for free!! How stupid's that. I quoted that idiot, and he was right, insurance did cover it a he got it done for free.


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## treechick (Mar 4, 2005)

"It is our feeling that if you own the land and are going to profit from ownership of the land, you have a responsibility to maintain it," DiTusa said Tuesday.

It's my understanding that the only way to make a case like this stand up in court is to show / prove that the property was used for profit. But I didn't see details of this in the post above ? Wasn't it a public road ? It'd take a slick lawyer to prove a 'profit' was being made, or atleast the _intent_ of a profit being sought. When $ is charged for use of property strictly for the cost of maintaining it (State land, etc.) would this still be considered "profit" ? Frivilous lawsuits are a drag, but so are stupid loopholes that remove people from responsibility.

( Did I really just say, "It'd take a slick lawyer..." ????? )  Were I the lawyer, I'd be having my gopher interviewing the real estate agent that sold the owner this property ... no matter how long ago it was ... and prove via quotes from him or his 'shopping' list at the time to prove that he was interested in more than just homeownership; that he did indeed consider it an investment and therefore intended profit. Were I the _homeowner_, I'd only have to check that my ins. policy was up-to-date. Sad but true, it is yet to be implemented that unless the homeowner had knowlege of the danger, he is supposedly not responsible ? In the above post about a guy actually being told by a cert. arborist that his tree was dangerous prior to damage, then the homeowner would indeed be held responsible. 
Pardon the long-winded response here, but I feel this is an important subject : (breathing in deep for more...)
When you (tree folk) go out and quote work, it is crucial that you put it in writing when a tree is dangerous, lest you be held legally responsible. I've heard that this is true even of trees that are *not* being subject to a quote, but rather simply on the premises. If this is true, we may all need a "SLICK LAWYER" to avoid losing our a** ???


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## glens (Mar 5, 2005)

Maybe a couple of years ago now, a large dead beech tree fell over onto a car traveling down the county road not too far from Indy. It caused the immediate death of both parents (he a preacher) and I think a brother, leaving only the little girl, who was also in the car.

Sad, indeed.


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## NeTree (Mar 5, 2005)

treechick,

I know Lizak... he doesn't do ANYTHING unless it's for profit.


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## John Paul Sanborn (Mar 5, 2005)

> When you (tree folk) go out and quote work, it is crucial that you put it in writing when a tree is dangerous, lest you be held legally responsible. I've heard that this is true even of trees that are not being subject to a quote, but rather simply on the premises.



What you do is not and communicate your opinion of risk, and that the property owner has the ultimate responsibility for the decision. It is possible to CYA without screeming HAZARD with every cavity. As long as the practitioner stipulates removal as an option, stating that there is some small risk for any tree to fail, then the practitioner has a reasonable assumption no liability.

I have seen good people begin to lean towards removing too often because they are afraid of future liability because they heard of one lawsuit in another state a few years ago.


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## clearance (Mar 5, 2005)

When in doubt-take it out. I loathe the people out there who have a legal and moral responsibility (like city arborists, power company arborists etc. ) who see stone cold dead garbage and do nothing about having it dumped. Ive seen trees that are brutal, conifers with no branches, busted tops, holes, fungus, 100ft tall snags just waiting to kill some unlucky person. Not out in the bush, in parks, beside roads and powerlines. Depraved indifference, callous disregard for human life, whatever you want to call it, it is totall b.s.. Do they think these trees are going to come back? Or maybe if it falls down on its own the tree budget they manage will have some money left in it for a year end bonus. I really hope the guys family is looked after.


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## JJackson (Mar 6, 2005)

This subject has been in my thoughts as of lately, here in norther arizona on some road, including the main inter state highways I see lots of dead trees along the side of the roads, I have been waiting for one to fall. I dont understand why the county, state and forester service do nothing about this. no dout with ther forest service land ther other agencies have to jump through many, many hoops. we even have trouble removing dead trees on usfs land right next to transmission lines. They only let us take them out without approval if and only if its ready to fall. I do fear that this is going to happen here in my area soon.


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## tinman44 (Mar 10, 2005)

ok i have a question. since i work at a utility. would the property owner the tree resides on be responsible for trees that fall into primary wires and cause outages? lets say 500 ppl out for 30 minutes, well those meters arent spinning.


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## treeseer (Mar 11, 2005)

"When in doubt-take it out."

This phrase is much abused. Our duty as arborists is first to resolve doubts by examination. JPS is right; a lot of safe trees get cut due to scatterbrained  liability paranoia.

Any RE investment is made for hopes of profit--no one wants to lose money on land or anything else, so that's a non-issue re responsibility. Risk assessment is every property owner, and highway manager's duty.

There are able consultants in MA; I hope that lawyer has the sense to turn one loose on this and get that family compensated for their loss. :blob5: 

Re trees on wires, no, the utility has an easement and it's their job to keep trees off wires, not the owners'.


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## John Paul Sanborn (Mar 12, 2005)

tinman44 said:


> ok i have a question. since i work at a utility. would the property owner the tree resides on be responsible for trees that fall into primary wires and cause outages? lets say 500 ppl out for 30 minutes, well those meters arent spinning.



Since the utility surveys the plant on a regualr basis, the only way they could fault the property owner is if the utility foresters were barred from removing the hazard by the property owner.

What the discussion is about is if there is a visible defect that wopuld lead a *reasonable person* (an actual leagal term) to assume that there is elevated risk of failure.

If it is an useen defect, then the standard of reasonableness cannot apply, if it is sotrm failure then it is act of god.

If it was a known defect, the utility contacted the owner, tried to resolve the situation then there would be grounds for seeking recompence for *loss of service* (one of the things a practitioner may be liable for if taking down power, or grinding a buried fiber trunck )


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