Liability: Playing Judge & Jury (again)
2 scenarios here that I am wondering about liability.
1) Company A goes to a house, cuts down a dead tree which is broken and leaning over the house. In the process of cutting down this small tree, the contract for 2 much larger ones which are hazardous as well are established. Almost 3 years later the larger trees still have not been taken down, however 1 has failed and done damage to a neighboring property. Is there any liability here?
2) Company B goes to a house to chip up a brush pile. Along the driveway going to the house is an obviously hazardous tulip leaning over the lines and driveway. Company B does the chipping and leaves without addressing the hazardous tulip. Several months later company B gets called back regarding this hazardous tulip which obviously hasn't gotten any better in condition. Company B submits a bid and gets the job, but before the job could be executed a storm comes and the tree fails taking out the lines and the new driveway. Is there any liability here?
Treeman82,
This same kind of question is asked often on this site. Most often respondents state 'opinion' based on their feelings generated in reading the questions posed. I anticipate the same will come from your question. What is concerning about these emotional responses is that they are usually founded on little if any legal basis. Be careful when you review these answers. That is one of the dangers of 'blog' sites. We tend to interact socially with others that share our interests and enjoy the false sense of security that is provided by others that share our preferred viewpoint. What I'm suggesting here is that similarly to other posts on this site, you are likely about to get many responses that say you are not liable.
Instead of telling you what you probably want to hear, I'm going to respond on the basis of my understanding of the law (similar systems in Canada as in the U.S.). There are two issues of legal principle you should be aware of. They each apply to both your case scenarios.
The first is that your questions, "Is there any liability here" is suggesting that you are asking 'us' to play judge and jury without evidence, facts and probably very little formal legal training. As implied by the earlier comment, you are likely instead to get responses based on emotional preference than actual legal principles. Anyway, the first 'principle' that is being indicated here is that of 'legal process'. One whereby evidence and testimony is presented by both a plaintiff and a defendent and then this is reviewed and a decision is made. In most types of cases, the burden of proof is on the plaintiff (some areas of liability are considered 'absolute' where the burden is on the defendent). In criminal cases (i.e. CSI, Law & Order type stuff), the requirement is to prove beyond a reasonable doubt. In civil cases, the requirement is only to prove beyond the 'balance of probability'.
The second point is really just an extension of the first. During 'due process', the evidence and testimony presented by a plaintiff in a civil case (as would be in the examples you use) is attempting to prove 'beyond the balance of probability' that you have been negligent. Note also that your question asks about 'any' liability. Here you have hit the proverbial nail on the head. You may not be entirely responsible. Providing some warning to a client and considering the lengthy period of time passed in example one would be significant evidence in the defence attempt to suggest no negligence existed. Should more of an effort to alert the client in an attempt to remedy the hazard have been diligently pursued? That's up for a judge and jury to decide based on the actual case should it become a reality. Similarly in your second example. Considering the storm's intervention with a pre-existing hazard will be a consideration for the court (judge & jury). Determining negligence will need to take view of many aspects of the conditions involved. A forensic arborist would likely be called by both plaintiff and defendent to testify. Statements from each may 'pitch' different perspectives. The plaintiff's argument likely would paint a picture of negligence on the tree service for delaying removal of what was an obvious hazard (to those in the tree industry). Testimony would probably also include examinations asking questions such as should it have been known that the threatening tree would fail in a storm. That last sentence is an important one to recognize. Many in the tree business believe that 'storms' are an 'act of God' and therefore they are a liability eraser. Ask yourselves to define a hazardous tree. Would this include one that presents a risk of causing damage or injury due its likely inability to withstand a storm? If the answer is 'yes', then where do you think this leaves the tree service that fails to remedy the risk?
The last point I want to make is to ask you (everyone who reads this), to consider what the costs of the 'legal process' above is. The original questions posed (by Treeman82) were "Is there any liability". There is an apparent perception that because many arborists will say 'no' that one can take comfort in believing people can't sue. Aside from the suggestion that 'no' is an incorrect response, it is emphasized that you recognize that being liable and being sued are two different things. What is common about each is that both will cost a lot of money. This takes me to my realm in the world. Insurance! In addition to general liability, please review carefully with your insurance representatives the importance of errors & omissions coverage. Not necessarily for what you have done 'wrong', but for protection to pay the substantial costs to prove what you have done 'right'. For more information including some examples, see:
http://www.treesure.ca/pages/page_37.asp.
Always interested in discussing this frequent issue.
Best Wishes!
Scott
