In Waukegan, Illinois, Helen Miller is suing over what is traditionally viewed as an act of God: a tree branch that fell during a thunderstorm and impaled her in the stomach while she was driving. Such acts normally cut off proximate causation, but she is suing the Vista Health System Surgery and Treatment Center for allegedly failing to properly maintain the tree.
As a general matter, landowners are required to maintain trees, but there is generally no liability when healthy trees fall during strong storms. However, given the landowner’s responsibility to protect people lawfully on the property, these cases are common. This year, the family of Jaylen Raggs reportedly settled with the city of Chicago for $1.55 million after Raggs, then 4, sustained a depressed skull fracture and brain damage when he was struck by a fallen tree branch on March 31, 2006. City workers had trimmed the parkway tree and the family argued that they should have realized the branch was diseased or dying. What is interesting about that settlement is that under the Local Governmental and Governmental Employees Tort Immunity Act (Act) ( 745 ILCS 10/1–206, 3–101 (West 1996)) local public entities are not liable for ordinary negligence in the upkeep of their recreational areas; they are only liable for willful and wanton conduct. Bialek v. Moraine Valley Community College School District 524, 267 Ill. App. 3d 857, 204 Ill. Dec. 924, 642 N.E.2d 825 (1994).
Liability is based on early cases such as Gibson v. Denton, 4 A.D. 198, 38 N.Y.S 554 (1896),where the court found that an owner could be responsible for decaying trees located on her property. Usually a court will look at whether a tree owner had actual or constructive knowledge of a hazard.
In Illinois, the standard was stated in Dudley v. Meadowbrook, Inc., 166 A.2d 743 (D.C. 1961): “We think the sound and practical rule is that liability in such cases is to be determined by the test of negligence and that a landowner should be held to the duty of common prudence in maintaining his property, including trees thereon, in such a way as to prevent injury to his neighbor’s property.”
One interesting twist in this case is that Miller reportedly kept the branch to turn it into art but was forced to turn it over as evidence. While chain of custody is not as pressing an issue in civil cases, it will be interesting to see how her possession of the branch effects its use in evidence. It will probably not be a barrier since it seems uncontested that she was injured by a limb from that particular tree.
There is also the question of plaintiffs’ conduct in driving during a thunderstorm. However, most people would agree that one should be able to drive during a storm — depending of course on its severity.
Source: Herald Review
Jonathan Turley
Everybody wants something for nothing. Who are you going to sue if you get struck by lighting..and unfortunately survive? The weatherman?
well mine is similar to this one one fell on my car while driving home with my daughter and my b/f…i was the driver i got hurt preety bad from abrasions but…we all went to the hospital and someone is reliable but from reading this is has to be the land owners the tree limb was hanging over the road and it was raining a lil bit …i stopped and the branch hit the windshield two more inches could of been killed…i just hope i do have a case and get what i deserve to move on with my life…the trees was supposed to be cut down 3 years ago
Seems the offending branch was nicked by the workers during the pruning which arguably contributed to the fall of the diseased or damaged limb during heavy winds. If the branch overhung a pathway (or a public street — the article isn’t clear) the City may have been strictly liable if they altered the structure of the tree and thus created the ultra-hazardous “Sword of Damacles” situation. Like rafflaw, I’d have taken that case given the severity of the injury.
A lot of local governments have errors and omissions insurance that is supposed to cover “errors”.
Sorry, I didn’t realize what a huge pile of suck Dailymotion is.
The Killer Trees SNL, 2nd Season.
Detective: [into phone] Yeah. Yeah, that’s what I said. You heard me! They’re killer Christmas trees! … They’re desperate trees, Chief, they won’t just settle for tinsel and candy canes – they want blood. … I don’t know, Chief, they’re some kind of mutant! … Well, they hear the traditional Christmas hymn “O Tannenbaum” and then they kill. … Looks like we’ve got a full-scale ecological disaster on our hands. I’ll get back to you as soon as I can. Yeah. All right.
This story made big news in the Chicago area when it first happened and I was wondering when she would be filing her lawsuit. This is not a nuisance lawsuit from the standpoint that she was seriously injured and had significant damages.
A lot of people have been severely injured by falling branches even when the weather is fine. The inside of the branches sometimes is black but I don’t know that there is any easy test to determine if they are good or not from the outside.
I used to travel for work a lot. I was stuck in an airport in Nebraska during a nasty spring snow storm & saw a memorable exchange.
Angry Yahoo: “I DEMAND YOU GET SOMEONE ON THE PHONE TO EXPLAIN TO ME WHY I AM GOING TO MISS MY CONNECTING FLIGHT! WE’LL MISS THE CRUISE SHIP IF WE DON’T MAKE THAT FLIGHT!”
Exasperated counter person, who had been putting up with angry’s crap for about 45 minutes, calmly picked up the phone and in a voice loud enough for everyone to hear: “Hello, operator? Would you please get me a direct line . . . to God!”
There is also the question of plaintiffs’ conduct in driving during a thunderstorm. However, most people would agree that one should be able to drive during a storm — depending of course on its severity.
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Kinda of like driving in a snow storm….sometimes you get unlucky and stuck in ditch…