I am representing – not for the first time – a personal injury plaintiff who was struck and injured by a falling tree. Very strong case. But when I tell non-lawyers I am representing a falling-tree victim, they blurt out something like this:
“Wow, a tree falls and you can sue? That’s what’s wrong with our system. A tree falling is God’s fault. Who the hell are you going to sue? God?”
And if they really want an explanation (and are not just venting against our tort system), I respond something like this:
God did not send this tree down on my client. The State of New York did. This tree fell on a main trail in a popular State of NY park, right where many visitors stop to admire a gorgeous view of water falls. The Park has a legal duty – and an internal policy – of removing trees that have obvious and visible defects, such as decay and rot, that are likely – as measured by well-established arborist science — to cause the tree or its branches to fall. They do not have any obligation to remove any trees at all – even ones likely to fall — except in areas of their park where visitors are likely to walk or gather, such as on trails, camp grounds, or picnic areas.
In this case, the tree that fell was located in one of the most popular areas for viewing the nearby water falls. The decay of the tree was extremely visible, covering more than 40% of the tree’s diameter starting near the base and all the way up into one of the tree’s main junction trunks. The State broke every rule in the book by failing to remove this hazardous tree in a popular gathering area. It was an accident waiting to happen.
What are the consequences to my client? The tree fell on my client as he admired the falls on a clear, beautiful spring day. All he heard was a loud “snap” and the next thing he knew he was on the ground with a 30-foot high tree lying on top of him. He then experienced an unbearable pain in his lower leg. A witness then pointed out to him that the section of his leg below the knee was literally at a 90 degree angle to the rest of his leg. (Believe me, it’s hard to look at the photos).
So yes, we are suing New York State because the State Park’s rangers did not do what they were supposed to do, and as a result, my client has lost income, has undergone surgeries, has all kinds of metal rods and pins and screws in his leg, and has a leg that will never be the same. It will affect the way he walks and lives the rest of his life.
Our lawsuit serves two purposes: (1) to fairly compensate my client for his injuries and (2) to teach the State park officials a lesson so that they will take much more care to avoid a similar accident in the future.
And it could easily happen again, if the State does not change its ways. Falling tree injuries are not uncommon. Just last week a portion of a tree fell on five people in Bryant Park, a very popular and crowded park in midtown Manhattan. I don’t know anything about that case except what was reported in the New York Times. Sometimes trees do have internal defects or rot that can’t be seen, and sometimes those trees do fail. Under such circumstances, no one is liable. But if the tree showed visible and significant decay or other defects, as in my case, then the owners of Bryant Park should be liable.
Click the link here to see more information regarding falling tree or falling branches injury claims (in a prior blog post).
Email me at: firstname.lastname@example.org I’d love to hear from you!
Michael G. Bersani, Esq.