Confronting tree-related property damage, personal injury, or wrongful death can be challenging, particularly when considering the often-overlooked role of forensic arborists. In this guide, discover their vital contributions in assessing liability and resolving claims, while gaining insights on expert tree analysis, insurance policies, and practical steps for navigating these incidents.
Disclaimer: The information contained in this article is for general informational purposes only and is not intended as legal or insurance advice. The opinions and advice expressed in this article are those of the author and not necessarily those of any organizations or entities the author may be affiliated with. The information provided in this article should not be used as a substitute for professional legal or insurance advice. If you have specific legal or insurance questions, please consult a licensed professional in your area.
The creator of that famous line
“I think I shall never see a poem lovely as a tree”
clearly did not manage insurance claims involving property damage, personal injury, or wrongful death. Matters can go from confused to frantic in no time. Trees conjure up significant confusion as adjusters, attorneys, and courts struggle to grasp who owned the tree, was there a duty to inspect, how did the tree fail, could the failure have been prevented, and were there signs and symptoms of impending failure in the before situation of the failure?
Some level of risk must be accepted to experience the benefits that trees provide. We deal with risk, which is the combination of the likelihood of an event and the severity of the potential consequences. To that end comes duty, which is defined by the courts. There is a greater duty to inspect with more people and fewer trees than more trees and fewer people. In most matters, the duty of care to inspect falls upon the owner of the tree.
As to ownership of the tree(s), the rule in all states is that a tree whose trunk stands wholly on the
land of one person belongs to that person. If a trunk straddles the land of two or more people, it
usually belongs to all those property owners. Some states assign ownership as a percentage
represented by the portion of the encroaching trunk across property lines.
When an incident occurs causing damages or worse, a safe base to touch blames the failure of the
tree or tree part on an Act of God, the definition of which rises to an extremely focused result.
Many times, the tree had a pre-existing condition that would have ended with the same result of
failure absence the Act of God. A forensic study of the failure may result in the identification of
the original causation of the failure.
Back to duty.
Weather conditions are central to claims. If not an Act of God, weather plays a key role for both
parties in a dispute. A meteorologist must strongly be considered in seeking resolution. Only a meteorologist can opine on weather conditions at the time and location of the incident. An attempt to save money by considering other resources of weather conditions is a bad investment. Extreme weather events occur infrequently. The Beaufort scale categorizing a level 9 has a wind velocity of 47-54 mph. Tree failures, in part or in whole below this level, are sometimes associated with pre-existing defects or other conditions that affect stability.
Pre-existing conditions associated with tree failure must be open and obvious to an assessor looking for defects in a tree – the duty to inspect. The American National Standards Institute, ANSI A 300, Part 9, Tree Risk Assessment lists 3 categories of inspection to determine risk. A Level I inspection is relegated to large populations of trees and is accomplished by a “windshield” inspection, a walk-by, or a fly-over. The assessor is looking for obvious defects in the trees such as death or decline.
A level II inspection is the standard assessment performed by arborists in response to a client’s request for a tree-risk assessment. It requires that the tree-risk assessor walk completely around the tree, looking at the site, the buttress roots, trunk, and branches.
A level III or advanced assessment provides detailed information about specific tree parts and is
typically conducted in conjunction with or after a level II inspection. Specialized equipment is
used in the analysis.
Apart from true Acts of God, a tree failure typically doesn’t just occur; there is a reason or a cause for the failure. The reason or cause may speak to duty. The location of the tree influences the level of duty. Trees located in remote areas are not held to the standard of duty as their companions growing in urban areas with multiple targets of people or property. Recall: more people and fewer trees…
Causation of tree failure may be daunting; however, the mystique associated with tree failure is not. The rules of negligence apply to trees as they do in any other category of incident.
About the Author: Joe Samnik is a consulting forensic arborist, an expert educated in the analysis of woody plants and other flora used as legal proof in judicial proceedings. By using his expertise in tree biology, growth, and identification, he is able to ascertain the age, condition, and context of trees that are involved in criminal or legal matters.
He has been established for 57 years and is a recognized expert witness in small claims, civil, criminal, eminent domain, and federal courts of law. He has been named as an expert in over 1,250 litigation assignments and has appraised over $300 million of value in those assignments.
Joe was also the past president of the Association of Eminent Domain Professionals and is licensed by the Bureau of Entomology, Department of Agriculture and Consumer Services. He is also the founding president of the International Society of Arboriculture (ISA), Florida Chapter and has presented at over 100 regional, state, national, and international conferences. His formula for appraising trees became part of Rule Chapter 1440 of the Florida statutes.