Tree Hazards: Understanding E&O Risks

[toscottm]

Hi All,

In reviewing many of the posts, a common concern and misperception is often the level of responsibility owed to a customer (and the public) for errors and omissions related to hazard assessments whether part of the intended service or not.

There are varying opinions on this, however the more experienced guys certainly do seem to have a good grasp on this. For the rest, let's chat about the risk and solution.

First of all, we need to recognize and accept that as an 'expert' (your level of 'expert' will vary based on experience and credentials), you are in a better qualified position to notice potential hazards than your client who is likely a lay-person. If hazards are noticed (or if they should have been noticed by someone who is a similar 'expert') and you fail to advise the client, from the laws point of view, you are probably in trouble.

The law looks at two matters. One is if a duty of care was owed and the second if the standard of care was breached. The duty of care is is owed if there is a reasonable responsibility to share your expertise. The standard of care is considered breached if you have failed to do what a similarly qualified person when faced with similar circumstances would have done. It is very important to recognize that these two matters do not need to be proven in 'advance' of a lawsuit. These matters will be the purpose of a lawsuit. I bring this up only because so many arborists (people for that matter) seem to perceive that they can't be sued merely because they think the did nothing wrong. That is instead a matter for the courts to decide! You can be sued regardless, it is up to the 'judge & jury' to determine if you are to blame.

What are the solutions? Well, as mentioned above, don't try to convince yourself that you can't be sued because you can. Accept the risk as 'part of being in this business' and do what you can to minimize chances and also to be in a strong position if you are sued. Here are some tips:

1. Diligence (be thorough with inspections [and non-inspections] by reviewing carefully all that would usually be reviewed)

2. Document (keep good notes as a record of what was reviewed, what was observed and your detailings, descriptions and warnings to the customer)

3. Contract (include a waiver within which the customer agrees to 'hold harmless & indemnify' you for failure to heed your advice and warnings - but remember this doesn't prevent someone from suing, it just gives you evidence to present in a lawsuit)

4. Insurance (carry broad errors & omissions coverage - see my next post about this).

Looking forward to chatting with those wanting to share their ideas, opinions, etc., on this always highly contentious issue.

Best Wishes!

Scott

 

[Ekka]

I disagree.

A doctor is not responsible for the well being of every person they pass in the street.

A mechanic is not responsible for every vehicle which may be in need of repair that they see whilst in a carpark going to the store.

I find this sort of talk typical from any legal people, but find me a case .... where a negligence suit was won for some-one not working for free. For some-one who just happened to be there.

There's 2 distinct categories.

1/ You were engaged in a consultative role and failed to advise due to oversight etc.

2/ You were not engaged to advise, you were there perhaps for other purposes (mulch delivery).

 

[toscottm]

E&O Risks: Disagreement

I disagree.

A doctor is not responsible for the well being of every person they pass in the street.

I find this sort of talk typical from any legal people, but find me a case .... where a negligence suit was won for some-one not working for free. For some-one who just happened to be there.

Ekka,

Thank you for taking the time to respond. Hopefully a little more 'debate' on this will help shed further light on this always troubling topic.

Per your suggestion, I agree that it is unlikely that a doctor would be found legally responsible for the well being of someone he passed on the street from merely a casual sense. However, we are not talking about arborists being held responsible for every tree they pass while driving down the highway either.

If someone were to visit their doctor about a sore foot, yet with other signs of apparent trauma, the doctor most certainly could not ignore the other problem simply on the basis that the patient had sought assistance with respect to the foot only.

In my business as an insurance broker, when an arborist asks me to review his building insurance and I show up and notice 300 gallon tanks of coloured diesel on site, pesticide storage and fertilizer storage, etc., there is immediately an obligation to also point out the importance of environmental liability insurance. It is morally and likely legally irresponsible of me to omit doing so.

In legal matters, we cannot choose to draw the line of our responsibility. When we enter into any professional vocation whereby we are viewed as 'experts' in that particular field, we are both blessed with the benefits and cursed with the obligations that come with our position.

As for this type of talk being typical of 'legal people', I am not a lawyer but an insurance broker. Of course, insurance provides much legal familiarity. As for your request to show you a case where someone has been sued for failure to provide advise where it wasn't directly requested or paid for, there are undoubtedly millions of examples worldwide. In Canada, my favourite web site to get details of cases that have been through the legal system (as opposed to settled out of court and therefore unpublished) is www.canlii.org.

With secondary thoughts on your doctor example, I actually do think that if a doctor was walking down the street and a passerby came the other way in signs of distress that are apparent to a doctor (i.e. experiencing a heart attack), there would be a legal and moral obligation to attend to the persons needs.

Please do bear in mind that it is not suggested that every tree needs to be inspected when hired (or not hired) to attend to a specific concern. I agree that ultimately what is not apparent is not likely to be something that would eventually be judged against you. Where the concern remains is that 'eventually be judged against you' means that someone can still make the allegation. I have other posts on this site that remind all that we can't avoid a lawsuit if it shows up on the doorstep just because we don't think we should be held responsible. If someone makes the allegation against you, you are now a 'defendant' like it or not. You may make your case on the basis that you weren't hired to provide an inspection and the hazard was not apparent to you or likely to be apparent to someone else with your qualifications. In the meantime however your investigation costs, legal costs, expert witness costs, etc., are adding up. Please remember if a process server brings a lawsuit to your door, you can't simply say, "no thanks, I'm not interested". You must handle the lawsuit regardless of how frivilous you think it is!

Looking forward to your rebuttle.

Best Wishes!

Scott

 

[rfwoodvt]

Ekka,

With secondary thoughts on your doctor example, I actually do think that if a doctor was walking down the street and a passerby came the other way in signs of distress that are apparent to a doctor (i.e. experiencing a heart attack), there would be a legal and moral obligation to attend to the persons needs.

Scott, you are correct in this particular example. In several US states there was passed a law universally know as the Good Samaritan law. Essentially it was enacted to protect passersby from liability should they render assistance to a person needing some form of rescue, be it physical rescue or medical assistance.

HOWEVER, that very law specifically excludes medical professionals from that protection. This means that rescue workers, doctors, nurses, anyone who essentially makes a penny rendering medical/rescue services will be held to a standard of care and are liable for errors.

Hand in hand with this law was also a clause that compelled these same "rescue workers" to stop and render assistance to anyone they happened across should it be needed. There are several specific instances where they don't have to stop but they are truely the exception.

So, professionals can and are compelled to act.

We as Arbo's are always wanting to be considered professionals! Well, this sort of conundrum is part of the package.

While we do not have a bit of statute compelling us, we have lots of precedent from other professions that we will be judged by.

If we don't want such responsibility then we at least have a duty to inform our clients that there may be other problems that need further investigation and that they can hire you for such an evaluation. Or, if you feel it beyond your scope of skills, let them know that such evaluations mayh be available for a fee from other providers.

But by all means, if we see that 90 inch Beech loaded with canker ready to drop on the neighbor's house trailer, we need to advise the customer immediatly.

Another way to perhaps protect ourselves is to not give advise. Rather, as an attorney once told me, give them options and explain the pros and cons of each. Then let them decide.

Just food for thought...

 

[Ekka]

Mrs smith calls and asks for a bid to remove a tree, she is getting a garage built and the tree needs to go. It's in her front yard.

Pretty straight forward, you see the tree and tell her it's $750.

In the back yard unknown to you and not seen except for the upper canopy at a distance above the 2 story house roof is a hazard tree, cavity, conks, decay etc. 3 weeks later the tree falls on her house .... nothing to do you with you right?

Similar scenario but you notice a large tree with a cracked co-dom stem ready to fail. You mention it and say it could fall flat out onto the house and cause a lot of damage.

She replies, " Oh well, insurance will cover it if it does." :hmm3grin2orange:

Another scenario. You notice a large tree and it's proximity to the house. You make comment to Mrs Smith that the tree is considerable and should be professionally checked for a nominal fee as time and advice is not free. She wont part with a cent. No report no inspection done. Tree fails onto house. What's the story here?

 

[toscottm]

Additional Details: E&O Risks

What's the story here?

Ekka,

Your arborist specific examples are probably more helpful to those following along. As for your question above, the answer is to return to the literal title of this chain of discussion. As we are speaking about E&O risks and the possibility of being sued (successfully or unsuccessfully) I encourage all to consider this key point. We cannot play 'judge & jury' on our doorstep. When something as serious as a tree failure occurs following a visit (for whatever reason) by an 'expert' arborist, it is quite possible that the customer, the customer's insurance company, a neighbour, or someone else from the public at large, may sue alleging an omission. It cannot be emphasized enough that when a process server shows up at your door with a lawsuit in hand, you just can't say "no thanks, I don't think I should be responsible so go away". There is now a day in court scheduled for you to state your case accordingly.

As hazard assessment is perhaps the most serious and appreciated risks of the arborist, I have used it as the example. However, I do encourage readers not to get overly focused on this only. There are many other matters for consideration of potential errors & omission also. The arborist that provides species specification, installation design, preservation plans, construction supervision and many other services has risks of errors & omissions. Even the 'pure' tree service company doing only felling and removal has a risk of 'wrongful removal' (felling the wrong tree, etc.).

Perhaps we are looking at this and playing too much as 'judge & jury' which is really what is most concerning here. Arborists need to know that they have errors & omissions risks. Basically they need to know that someone may make an 'allegation' against them. The outcome is a moot point in respect of the intent of this dialogue, the purpose instead is to encourage thought on the possibility that they could be sued and if sued the case needs a strong defence.

Respectfully!

Scott