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Subject: Remove healthy tree-member injured in windstorm
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AmyA1
(Washington)

Posts:96


01/06/2019 8:12 AM  
Our HOA consists of 499 homes and has many greenbelts with large trees. We do have money in our budget for tree removal, but only like to remove trees that are dying or hazardous.

Dec. 14th we had a very bad windstorm and a homeowner was outside and hit by a falling branch. She was critically injured and is still in the hospital.

A neighbor is calling for 2 trees to be removed in the greenbelt that are next to where this happened. The trees are healthy and in the last 12 yrs have only lost about 3 large branches.

Thoughts on how to handle this?

FYI: The news did come out and report on the accident. The board has reached out to family and as permitted keeping members updated on her condition.

JohnC46
(South Carolina)

Posts:7927


01/06/2019 8:49 AM  
It will all come out when she sues.
GeorgeS21
(Florida)

Posts:853


01/06/2019 8:56 AM  
To be clear, the branch that caused the injury was from a tree in the common Greenbelt?
LetA
(Nevada)

Posts:579


01/06/2019 9:19 AM  
That't a touchy situation, The BOD from my HOA went ahead and cut down trees with evasive root systems from common and private home properties, and we homeowners got socked with it all.

I hope the neighbor recovers quickly. I would consult with an arborist or how o proceed, cutting down trees is a a knee jerk reaction and will end up bing quite costly. Also brining in an arborist will be a preemptive strike when the injured person files a lawsuit against the association.. BTW contact your insurance agent and add a loss assessment addendum to your homeowners policy.
MelissaP1
(Alabama)

Posts:7813


01/06/2019 9:28 AM  
I agree an arborist should be hired to make the evaluation on the health of trees. You can't see all the creepy crawlies in a tree to identify it as bad. We had a tree that water froze inside it. When it quickly thawed out, it fell on a house. We could not afforded to have the tree removed prior to the accident. We did have an arborist advise us.

This may fall under "Acts of God" when it comes to insurance purposes. So it will have to be an insurance battle. I had a tree in my yard that was bad fall on my neighbor's house during the leftovers of a hurricane. It was claimed on my insurance to cover. If it had been a healthy tree it would have been on theirs. Also may want to see any caveats relating to storms like hurricanes on how insurance handles those. They are a bit different than "storms". They are fall under natural disasters.

Hope the person is okay and is released soon from the hospital. Don't knee jerk react to all of this. Stay the course that the arborist and insurance lays down. I would say lawyer but that is something need to evaluate differently.

Former HOA President
AugustinD


Posts:1271


01/06/2019 9:39 AM  
The HOA has a maintenance responsibility for trees et cetera on common areas. Winds and weather in general are becoming more severe all over the nation. I think this demands that HOA re-evaluate landscaping and other designs. I concur with consulting an arborist or highly experienced landscaper about either cutting back the trees' branches or removing the trees, emphasizing the HOA's concerns about winds these days.

Did the HOA inform the HOA's insurer of this event? This is critical. I think chances are high that the HOA insurer will pay for the injured person's medical expenses et cetera, to say the least. If the person is on Medicare, then Medicare will come after the HOA insurer, as perhaps Medicare should.
TimB4
(Virginia)

Posts:16092


01/06/2019 9:57 AM  
Posted By AmyA1 on 01/06/2019 8:12 AM

Thoughts on how to handle this?





With any tree complaint, the Association should contact an arborist to evaluate the tree in question.
The Association should then follow any advice the arborist provides.

The arborist might say nothing should be done, the tree should be pruned or removed.

We had one family call several times about trees on the common area around their home after one fell and hit their fence in a storm. Every time, the Association had someone look at the trees in question and the response was the same: the trees are healthy and require no maintenance at that time.

I know it seems silly to have to spend money for this. However, the reason to spend the money is to minimize any legal action if something happens.

Therefore, always call an arborist for every tree complaint and act upon their advice. Failure to do so could result in larger costs to the association if something happens based on negligence.


In the long term, talk with companies about evaluating all trees on the common areas and provide a maintenance schedule for them. You might not be able to do all the work at once, but you will have a plan to work with in the future.

TimB4
(Virginia)

Posts:16092


01/06/2019 10:00 AM  
Side note (as I discovered after an owner made a complaint to the County) there may be County requirements about the number, placement and species of trees that must be maintained. It is this way in Fairfax County in VA.


AmyA1
(Washington)

Posts:96


01/06/2019 10:04 AM  
I agree an arborist needs to be consulted. In WA State windstorm is an act of nature and since the trees are healthy the association would not be liable. But thank you for bringing that up, we should notify our insurance.
I am wondering if we did cut down the trees, it might give the assumption that they were hazardous.
AmyA1
(Washington)

Posts:96


01/06/2019 10:08 AM  
We did have an arborist come through about 5 yrs ago and we have followed his advice on all "problem" trees.
I think it might be time to do that again.
AugustinD


Posts:1271


01/06/2019 10:28 AM  
After experiences at two older HOAs, one huge lesson I have learned is that trees that grow into big old beauties often are a growing monster in disguise. Their tree roots can lift home foundations, parking areas, and roads, and invade sewer lines, costing hundreds of thousand dollars to repair. Their branches often simply become too hazardous and too expensive (due to height) to trim; and their bases often become unstable, due to all the weight at the top, and threatening a toppling over in high winds. I do not know all the details of this situation. But if I were on the board, I would be setting aside discussion of insurance, attorneys, arborists, who will pay for what, what the appearance is if xyz is done, and so on. Instead I would be thinking about this person in the hospital and the possibly life-changing damage this has done to this person's life. I would wonder whether it could happen again. I would ask whether the HOA could reasonably do something to stop such severe injury in the future. Does it seem clear to me that the risk is high someone else will get hurt (and seriously) or property will be damaged (and seriously)? If so I would be motioning for an extreme trimming of the trees and possibly removal, followed by replacement, explaining to the members why I felt this way in an open meeting.

Get ready for a possibly huge HOA insurance payout to this person, as is just. This stuff happens. It's often no one person's fault.
AmyA1
(Washington)

Posts:96


01/06/2019 10:59 AM  
I would ask whether the HOA could reasonably do something to stop such severe injury in the future. Does it seem clear to me that the risk is high someone else will get hurt (and seriously) or property will be damaged (and seriously)? If so I would be motioning for an extreme trimming of the trees and possibly removal, followed by replacement, explaining to the members why I felt this way in an open meeting.

Very good advice! Washington State is known for it's large evergreens and with replacement that would keep our "naturally green" look.
Also, not just the board, but the whole community is very concerned about what happened. I can't say what her condition is- but let's say it was a head injury and it will be life changing. If someone had not come out of their house and noticed her headlamp laying on the ground she would not be alive now.
Thank you everyone. We want to make sure the boards actions will protect both the Association and the people that live here.
RoyalP
(South Carolina)

Posts:307


01/06/2019 11:49 AM  
Posted By TimB4 on 01/06/2019 9:57 AM
Posted By AmyA1 on 01/06/2019 8:12 AM

Thoughts on how to handle this?





With any tree complaint, the Association should contact an arborist to evaluate the tree in question.
The Association should then follow any advice the arborist provides.

The arborist might say nothing should be done, the tree should be pruned or removed.

We had one family call several times about trees on the common area around their home after one fell and hit their fence in a storm. Every time, the Association had someone look at the trees in question and the response was the same: the trees are healthy and require no maintenance at that time.

I know it seems silly to have to spend money for this. However, the reason to spend the money is to minimize any legal action if something happens.

Therefore, always call an arborist for every tree complaint and act upon their advice. Failure to do so could result in larger costs to the association if something happens based on negligence.


In the long term, talk with companies about evaluating all trees on the common areas and provide a maintenance schedule for them. You might not be able to do all the work at once, but you will have a plan to work with in the future.





Y'all own stuff -> Y'all need to maintain that which y'all CHOSE to own.

? costly ?

! you betcha !

? necessary ?

! you betcha !

Y'all are now 'on notice' that there are 'issues' with your trees


IMO: this will cost y'all (indirectly in the form of raised insurance rates) MUCH more than proper maintenance would have


SueW6
(Michigan)

Posts:402


01/06/2019 2:17 PM  
Good luck. There will be a lawsuit, for sure. Notify your lawyer and insurance company plus any vendors involved. Document all activities from now on.

Heaven help the HOA if there is anything in writing from the past suggesting or demanding that this tree be pruned.

RoyalP
(South Carolina)

Posts:307


01/06/2019 3:09 PM  
as per the OP:

..... The trees are healthy and in the last 12 yrs have only lost about 3 large branches. .....


? ... when the 4th large branch falls and potentially strikes someone ... ?

ps. you have now confirmed, to the www, and (hopefully) to the injured party that you KNEW large branches have fallen PREVIOUSLY, yet failed to address the issue because of 'finances', not even by posting warning signage
AmyA1
(Washington)

Posts:96


01/06/2019 4:37 PM  
Actually the board was just told this. I have asked if there is any documentation that the board or LandUse Committee (oversees greenbelts) has had any communication about the trees prior to Dec 14th. I am not aware of any.
AmyA1
(Washington)

Posts:96


01/06/2019 4:39 PM  
I don't see where it was noted we did not address an issue because of finances.
AugustinD


Posts:1271


01/06/2019 6:03 PM  
Posted By SueW6 on 01/06/2019 2:17 PM
Good luck. There will be a lawsuit, for sure. Notify your lawyer and insurance company plus any vendors involved. Document all activities from now on. Heaven help the HOA if there is anything in writing from the past suggesting or demanding that this tree be pruned.


Why do you think a lawsuit is a certainty? Do you realize that there is a formal process for incidents such as this, taking place long before a lawsuit would ever be filed? That talks between the HOA insurer and the victim (or her attorney or her own insurers) here are going to be extensive before anyone files a lawsuit? Do you understand that this is because the expense of a lawsuit can easily exceed the expense of injuries? The insurance companies know the dollar figures. Insurers know the statistics on winning. It is rare for a legal demand to ever make it to court. Settle, settle, settle.

As for documentation being available showing xyz, so what? People do the best they can. There is no way they can foresee everything. Or are you saying never put in writing demands for pruning a tree, because the Board would like to be able to lie about it in the future? The whole purpose of requiring HOAs to have insurance (and drivers to have insurance, and so on) is to deal with situations like this. Let the process take its course: Insurer informed; HOA attorney informed; Board reviews the safety of the situation in consultation with professionals; and so on. One day at a time.

RoyalP, as for someone publishing here that branches had fallen in the past, are you of the opinion that the HOA should lie about these falling branches? HOA management, HOA boards, and corporations should never lie. It will be found out, and things will be worse as a result.

RoyalP
(South Carolina)

Posts:307


01/06/2019 7:59 PM  
Posted By RoyalP on 01/06/2019 3:09 PM
as per the OP:

..... The trees are healthy and in the last 12 yrs have only lost about 3 large branches. .....


? ... when the 4th large branch falls and potentially strikes someone ... ?

ps. you have now confirmed, to the www, and (hopefully) to the injured party that you KNEW large branches have fallen PREVIOUSLY, yet failed to address the issue because of 'finances', not even by posting warning signage




Then, as per:
Actually the board was just told this.
the BOD has prima facie proved its own incompetence.

RoyalP
(South Carolina)

Posts:307


01/06/2019 8:04 PM  
Posted By AmyA1 on 01/06/2019 4:39 PM
I don't see where it was noted we did not address an issue because of finances.




Your 'budget' evidently does NOT include routine and periodic trimming to PREVENT the falling of large branches.

ALL trees adjacent to structures or 'walking paths' (unless said path is a 'nature trail') require periodic inspection AND pruning / trimming.

Even a 'nature trail' requires maintenance.

Y'all own it.

Y'all should maintain it.

Sheez, stop twisting and squirming and start paying up for the neglected maintenance before someone ELSE gets hurt.
RoyalP
(South Carolina)

Posts:307


01/06/2019 8:12 PM  
F/Y/I:

(the keys words are: or should have known)


http://www2.mnbar.org/benchandbar/2002/mar02/tree.htm

Negligence: Hazard Trees and Limbs
The trend across the country is to hold tree owners legally responsible for damage caused by unsound or "hazard trees."11 A hazard tree is a tree with a defect plus a target, such as a sidewalk, a car, or a house in the path of an unstable or decaying tree.

Minnesota cases involving negligence in tree law tend to fall into two categories: damage caused by trees or damage done to trees. Foreseeability is the common thread that runs through both types of claims. In both instances, courts will look at what should have been obvious to the tree owner about the tree's condition.
Damage Your Client's Tree Causes. If a neighbor's tree is unsound and threatens your client's property, the neighbor may be liable for any damage that occurs. The test is whether the tree owner knew or should have known that damage was likely. A tree owner is not expected to be a tree expert, but she is expected to recognize obvious symptoms of a problem, such as the unseasonal lack of leaves, a dead limb, visible decay, or a tree leaning dangerously to one side. If the potential for damage is foreseeable and if the tree owner fails to take corrective action, the courts will likely hold the owner legally responsible for damage caused to people or property.

In an unpublished opinion, the Minnesota Court of Appeals found that a landowner was not liable in a personal injury case where the landowner's tree did not pose an obvious danger.12 In that case, a tree trimmer was injured when a decaying branch broke. Liability was not imposed, because the branch appeared to be sturdy and showed no signs of decay. In another case, a landowner was found to owe no duty to protect a pedestrian from a low-hanging branch that was clearly visible.13
What's Entropy Got to Do With It? A Georgia case that reaches the same conclusion about foreseeable danger is worth quoting. Taking judicial notice of the Second Law of Thermodynamics, the court said,
This law tells us that all in the universe, trees, human beings, plants, animals, buildings, and all else are headed downward from complexity to simplicity toward decay, deterioration, decadence, and death. Everything heads towards decay; for example, a tree decaying, which is an increase of entropy, or uselessness. We are specifically limiting liability to patent, visible decay, and not the normal, usual, latent, micro-nonvisible, accumulative decay. In other words, there is no duty to consistently and constantly check all pine trees for non-visible rot, as the manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.14
Act of God. A frequently heard excuse is that damage caused by a fallen tree was an act of God. Not every tree that falls over in a strong wind and causes damage is the result of an act of God.17 To qualify as an act of God in negligence cases, all of the following elements are needed: 1) the accident must have happened from a force of nature that was both unexpected and unforeseeable; 2) that force must have been the sole cause of the accident; and 3) the accident could not have been prevented by using reasonable care.18 A bolt of lightning is an act of God, if it is the sole cause of an injury. However, a person is liable if his own prior negligence combined with the act of God to cause the injury.



Notes
1 Holmberg v. Bergin, 172 N.W.2d 739 (Minn. 1969).
2 Minn. Stat.¤561.01
3 Holmberg v. Bergin, supra.
4 Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931)
5 Richmond v. General Engineering Enterprises Co., 454 So. 2d 16 (Fla App D3, 1984).
6 Holmberg v. Bergin, 172 N.W.2d at 744.
7 Booska v. Patel, 24 Cal. App. 4th 1787, 30 Cal. Rptr. 2d 241 (1994).
8 Michalson v. Nutting, supra, 175 N.E. at 490.
9Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (1939)
10 See, e.g., Skinner v. Wilder, 38 Vt. 115 (1865).
11 "Hazard tree" is a term of art used by arborists and tree scientists.
12 Allison v. Olson and Mauer, filed December 12, 2000, C0-00-942 (unpublished). http://www.lawlibrary.state.mn.us/archive/ctapun/0012/942.htm
13 Sperr by Sperr v. Ramsey County, 429 N.W.2d 317 (Minn. App. 1988).
14 Cornett v. Agee, 143 Ga. App. 55, 237 S.E.2nd 522, 524 (1977).
15 Rector v. McCrossan, 235 N.W.2d 609 (1975)
16 Guide for Plant Appraisal, 8th Ed. 1992.
17 Swanson v. LaFontaine, 238 Minn. 460, 57 N.W.2d 262 (1953)
18 VandenBroucke v. Lyon County, 301 Minn. 300, 222 N.W.2d 792 (1974)

AmyA1
(Washington)

Posts:96


01/06/2019 8:27 PM  
Even if the board was told about falling branches in a greenbelt, I really don't think a tree loosing 3 branches in 12 yrs would of called for removing a tree. Not sure where you live, but in Washington that is not a big deal. In our original PUD from the 80's it states that this greenbelt is to remain in natural state. The tree is healthy, we will get an arborist to confirm no hidden problems. We do take down any tree that is a hazard, we spent over 10k addressing trees last year and this tree was brought to attention. In fact a member of the board and our LandUse chairman also lives next to this greenbelt. If we had thought the tree was going to be a problem.. it would of been addressed.

This was a very unfortunate accident. The news and local media told everyone to stay inside.
AmyA1
(Washington)

Posts:96


01/06/2019 8:32 PM  
We do take down any tree that is a hazard, we spent over 10k addressing trees last year and this tree was brought to attention.

SORRY - THIS TREE WAS NOT BROUGHT TO OUR ATTENTION.
AmyA1
(Washington)

Posts:96


01/06/2019 8:35 PM  
17 To qualify as an act of God in negligence cases, all of the following elements are needed: 1) the accident must have happened from a force of nature that was both unexpected and unforeseeable; 2) that force must have been the sole cause of the accident; and 3) the accident could not have been prevented by using reasonable care.
--------------------------------------------------
All three are true in our case.
RoyalP
(South Carolina)

Posts:307


01/07/2019 7:22 AM  
correct

assuming the corporation performed due diligence and periodically INSPECTED the "green area's" trees

remember the phrase 'or should have known'


ps. ? if y'all are so sure of yourselves why are you posting questions ?

AugustinD


Posts:1271


01/07/2019 8:20 AM  
Posted By AmyA1 on 01/06/2019 8:35 PM
17 To qualify as an act of God in negligence cases, all of the following elements are needed: 1) the accident must have happened from a force of nature that was both unexpected and unforeseeable; 2) that force must have been the sole cause of the accident; and 3) the accident could not have been prevented by using reasonable care. All three are true in our case.


I think one of the Board's next steps should be to see whether the HOA's insurance policy has a "hammer clause." A "hammer clause" permits the insurance company to settle a claim without the consent of the HOA. In the face of a lawsuit where the insurer is contractually obligated to provide legal counsel, and where what the truth is can be debated for many expensive months of discovery, motions, and so on, what is "true" is irrelevant. What will cost the insurer the least amount of money is what is most important.


MarkM31
(Washington)

Posts:396


01/08/2019 9:07 AM  
Trees loose branches in these seasonal high wind events we get in western Washington. Even healthy trees loose branches. Besides cutting your greenbelt down to 14' high, there is often little people can do.
AmyA1
(Washington)

Posts:96


01/09/2019 7:06 AM  


ps. ? if y'all are so sure of yourselves why are you posting questions ?

i think *most* folk use this forum to see if anyone else has been through similar experiences and hopefully, pick up some useful tips along the way.....
RoyalP
(South Carolina)

Posts:307


01/09/2019 7:25 AM  
useful tree tips:


hire arborist

perform suggested/required work

keep documentation



else



hire attorney to defend and/or pay increased insurance




IOW: pay me now or pay me (much more) later
GenoS
(Florida)

Posts:2580


01/09/2019 3:26 PM  
If litigation is a possibility make sure you hire a CONSULTING ARBORIST. Many court systems will only hear expert testimony from a consulting arborist.
KerryL1
(California)

Posts:6045


01/09/2019 4:41 PM  
Geno makes a good point.
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