So I pruned an American Elm in 2014.. (Dutch Elm Disease)

[SlickDamian]

I am being sued for death of a 50years old American Elm that I pruned two years back. Tree has been removed and stumped by the treeowner.

I was hired by a client to prune branches of an Elm that was situated on neighbour's yard.

The tree owner (neighbour) is asking my client for cost of removal of tree, replacement, etc. because he thinks that the pruning cuts made the tree more susceptible to DED (Dutch Elm Disease). What he's asking adds up to $20K. At least that's what the guy is seeking.

Now, my client decided to sue me for this matter. Because I am the one who performed the job.

I just came back from the Settlement Conference and my client offered the tree owner $3250 and I offered $1130 (cost of work) + Stump removal for that tree (around $900) + $500

Tree owner declined the offer and he said he'd take the offers if I can dig a hole by the subject tree's location for an 18' tall tree. We could not settle and we will be bringing this matter to a Trial within a month or so.


------------------------------------------------------------------------------------------------------------------
Here's some background of the story:

I am a young Canadian ISA Ceritified Arborist who completed Arborist apprenticeship in 2015.
My dad owned a small tree company since 2012 without much knowledge and I was in school to make the business a little more legitimate.
In August 2014, I have pruned an American Elm for a client who had a neighbour's tree branches dragging on his roof and shingles. Thus he hired me to prune back them branches he wanted. I personally quoted and performed the work.
I was not a CA back then but was in first year apprenticeship.

I did prune the branches that he requested and I tried my best to follow a good arboricultural pruning practice

------------------------------------------------------------------------------------------------------------------
As mentioned above, the treeowner think the tree died due to my pruning cuts at the wrong time of the season.
My client thinks he is not liable because he hired a "professional".

The judge at the conference didn't listen to me at all and he looked at it this way:

There was a 50year old Elm tree
Neighbour hired a professional to prune a tree
Pruning was done at the wrong time of the season (not recommended practice according to standards, it is even banned in some states/ provinces in North America)
Damage is done and if they should be liable, the client and the contractor should be liable something like 50:50

My defense was that the tree was healthy, but was not maintained at all. No preventative measure has been taken so it was going to get it anyway. DED has been around for decades and is still around killing healthy American Elms and it is the cause of nature.

Interesting fact that I must add is that there is a neighbouring young American Elm about 20cm DBH that is still alive.
---------------------------------------------------------------------------------------------------------------------

It is hard because my client's defense is pretty much the same as mine but when the judge does not agree, they will blame everything on me because I should've known better.

It is a bitter pill to swallow. Anyone has an advice? opinion? any articles related to it?
I am going to consult a lawyer to see what my options are.

Thank you very much and I will await your interesting insights.
Damian

 

[Big_Eddy]

Dutch elm disease comes and goes in cycles. My first step would be to see how many other elms died off the same summer in the same general area (10 sq. mile)

Next would be some research into the mechanism of infection and how long a tree has from infection to death. I don't have a clue but if it's 3+ yrs you could build a case the tree was already doomed.

I assume you have liability insurance. I would think your insurance provider already has a lawyer lined up.

 

[ATH]

When did you prune it? (Month?)

Did you inform your client of the risk? (Did you know the risk?)

Did your client have the neihbor's permission to prune the tree?

Did you treat the pruning wounds?

Did you offer preventative injections?

Are there local ordinances regarding care of trees and did you follow those to a letter?

Could start to sound scary. BUT:

How have they determined that the fatality was a direct relationship to your pruning?

Perhaps a step back from that one: How did they determine it was DED that killed the tree....Do they have lab samples to prove it? Was it 100% DEd or did Armillaria play a role (that is a 'trick' question to see if their expert is paying attention if you were to autopsy a DED tree, Armillaria would almost always be rhe ultimate COD.). Could it have been elm yellows?

Was there any flagging in 2014? (Depending on when you pruned, this could be a big deal). Do they have pictures of that?

Are there other DED killed trees in the surrounding area that were not pruned?

Were there beetle galleries under portions of bark not near your pruning cuts?



Not intended as legal advise, but if I were hired to diagnose a dead elm, I'd want to know most of those answers before issuing a report.

I'd also ask for more information about the topping cuts in those pictures....And perhaps ask somebody to define "expert"

 

[ATH]

......

I assume you have liability insurance. I would think your insurance provider already has a lawyer lined up.

They also likely have a "your work" exclusion lined up and their lawyer is likely going to be on the company's side, not his for that one.

 

[Jason Douglas]

ATH is on the right path I believe. I would also want to know who diagnosed the tree death and HOW it was determined. I would want to see pics of vascular streaking, flagging, and larval galleries as well. A report from a plant diagnostic lab would be a plus too. It's probably too late for any forensic examination now unfortunately. While DED is the most likely culprit, elm yellows and other pathogens could have been at play as ATH mentioned. Doesnt sound like they have proven definitively that your pruning is the cause of death.

While I do consulting, tree case law is definitely a weak point for me. Have your lawyer look into Lew Bloch's book regarding the topic.

I would also want to investigate to prior standard of care the tree was receiving before you did any of the pruning. One could possibly argue that an owner of an American elm would be subjected to the Duty of Care to have such a problematic tree treated or at the very least inspected for DED but since a professional (you) is involved, liability could be pushed your way.

 

[pro94lt]

Did you have permission?

 

[BC WetCoast]

You may want to consider consulting/hiring a senior consulting arborist who has court experience to sit on your side. He would be able to ask these types of questions mentioned above, find out what data to gather, what data wasn't gathered and work with your lawyer.

The other things people need to consider, he is Canadian, so the absurd liability settlements that are seen in the US are not common here.

If all you're going to be out is the cost of the work you've already done along with some stump grinding and hole digging, you may want to accept the offer and move on with your life. I assume you'll grind the stump yourself (so it's only your labour) and dig the hole yourself (about 2 hrs labour), you would be better off than hiring a lawyer.

 

[Pelorus]

Ian Bruce is the guy you need to contact, imo.
Please let us know what the outcome is.

 

[Pelorus]

How likely is it that your pruning contributed to the death of that tree? 100% certainty seems impossible to prove, as per ATH's pertinent questions in his post.
Unfortunately, so does 0% (given the timing of said pruning).

 

[Zale]

Call Lew Bloch. He is still alive and consulting. I saw him at TCIA.

 

[ATH]

How likely is it that your pruning contributed to the death of that tree? 100% certainty seems impossible to prove, as per ATH's pertinent questions in his post.
Unfortunately, so does 0% (given the timing of said pruning).

I don't know Canadian law. In most states in the US, a civil suit calls for the plaintiff to present a "preponderance of evidence" (as opposed to the "beyond reasonable doubt" necessary for criminal prosecution). Depending on the answers to some of the above questions that could either be very easy or very difficult. But, yes unless a very detailed examination was done soon after pruning and soon before the ultimate demise of the tree 100% or 0% confidence are both going to be tough.

 

[Pelorus]

I don't know how it works, esp. when it isn't clearcut black or white. Can the patient be partially pregnant? I was told once (by a cop) that insurance co's like to apportion a percentage of blame (responsibility) to both parties in a dispute. Mebbe they make more $$$ that way, and it has nothing whatsoever to do with "fairness".

 

[DR. P. Proteus]

I'd be digging a hole and getting out.

 

[SlickDamian]

Thanks ya'll for the response
Good news,
It turns out the neighbouring Elm tree is a DED resistant specie Ulmus pumila

As far as digging a hole,
The tree owner wishes to plant a mature tree (at least 20' tall) so..
It isnt your ordinary dig and plant baby tree.

 

[ATH]

First i have heard that U. pumila is "good news" but I see why you say so.

 

[Pelorus]

Dig the hole, and that tree croaks...
Mebbe yer lawyer will give you a break on account of you being a repeat customer.

 

[BC WetCoast]

Thanks ya'll for the response
Good news,
It turns out the neighbouring Elm tree is a DED resistant specie Ulmus pumila

As far as digging a hole,
The tree owner wishes to plant a mature tree (at least 20' tall) so..
It isnt your ordinary dig and plant baby tree.

I've dug holes for 20' trees. It's only a couple of hours depending on the number of rocks. The harder part is getting a 20' tree to the hole if there isn't crane/knuckleboom access.

 

[miko0618]

Have your client counter sue for forcing him, through neglect, to hire someone to prune his neighbors tree off his house. If the neighbor neglected his tree and it grew on to his neighbors land, those overhanging limbs are fair game to cut. The liability is on the owner of the tree at that point. That's our local law anyway.

Sent from my SAMSUNG-SM-G930A using Tapatalk

 

[no tree to big]

Did you get permission to trim this tree when you did the work? Yes many cases you can cut to the property line regardless but we always get signatures.

Sent from my SM-G900T using Tapatalk

 

[murphy4trees]

Have your client counter sue for forcing him, through neglect, to hire someone to prune his neighbors tree off his house. If the neighbor neglected his tree and it grew on to his neighbors land, those overhanging limbs are fair game to cut. The liability is on the owner of the tree at that point. That's our local law anyway.

That sounds like a reasonable argument and the best one you have by far..... However I;d have to agree with the plantiff, that you are a pro who performed the work and the tree died as a a direct result of the work you performed. You bear the greatest if not sole responsibility for the damage. Unfortunately they don't tell you about the need to seasonally prune elms when they sell chainsaws and ropes and saddles.... I only learned through bitter experience. I used a pole pruner to slightly elevate an elm over the roof, not a big tree, maybe 16" dbh and no cut over 1"... Tree never leafed out the next year. Now I only prune elms in the dead of winter...
like this one: