The needler in the haystack.

Friday, September 10, 2010

Tree crushes van on Myrtle Avenue, liability issue re-examined


This van was crushed by a falling tree Tuesday evening.
A tree crushed a van parked on a Plainfield street Tuesday night, raising once again the issue of liability.

Dr. Greg Palermo, chairperson of Plainfield's Shade Tree Commission, wrote a thoughtful comment about state law and city liability for street trees on my recent post about the tree that fell across Field Avenue last Saturday afternoon (see here). Dr. Palermo's comment is worth reprinting in full as it sets out the conditions under which Plainfield can reduce its liability for dead and dangerous 'city' trees --

...Michael Townley's extrapolation from potholes to hazardous trees ("What you don't know can't hurt you") does not take into account the New Jersey Shade Tree and Community Forestry Assistance Act of 1996 (P.L.1996, c.135).

That statute provides liability protection for municipalities that deal with hazardous trees according to a management plan modeled on state guidelines and acceptable to the State Forester. To meet those guidelines, the municipality must prioritize its hazardous trees and deal with them in order, the most hazardous first.

Prioritization takes into account not only tree condition, but also location. For example, a dead tree overhanging a sidewalk near a school is a more serious threat than a dead tree on a low-traffic street. The tree near the school would find itself near the top of any reasonably constructed priority list.

To avoid taking note of which trees are hazards because that knowledge exposes us to greater risk of lawsuits is to subvert the intent of the 1996 law, the language of which makes very clear that its purpose is to help communities deal with liability problems ("properly planned and implemented local community forestry programs can provide the necessary basis for local governments to reduce or eliminate liability associated with local tree care programs").

Prioritization of tree hazards is good public policy because it permits the City to remove the most serious threats to public safety and because it complies with the 1996 statute, thereby providing liability relief.

The alternative is to rely on luck to avoid injury when trees or limbs fall in heavily trafficked areas.

Does documentation of hazardous trees require that each tree with a flaw be remedied or removed? No. It's a rare tree that has no flaws. Remedying every hazard would consume the entire municipal budget in most towns. What is required for state approval (and its attendant liability relief) is a reasonable plan of action to remove tree hazards in a prioritized way.

Plainfield needs a tree census and has unsuccessfully applied within the last few years for state grants to carry one out.

Gregory Palermo, Chairman
Plainfield Shade Tree Commission
I was alerted to the tree that fell and crushed the van by Plainfied Today reader 'OB3' who posted a comment that very evening.

What I discovered was that a tree on the Union County side of the fence along the edge of the Green Brook Park had fallen onto the van parked on the city street.


The culprit? A dead tree just inside the County's Green Brook Park.

Longtime activist and Myrtle Avenue resident Nancy Piwowar tells me that she has complained to Union County for years about the dead trees on the edge of the park, to no avail.

Perhaps attending more to the trees and less to musical extravaganzas extolling the Freeholders would be a good thing?


    -- Dan Damon [follow]

    View today's CLIPS here. Not getting your own CLIPS email daily? Click here to subscribe.

    8 comments:

    Anonymous said...

    All I know is that a city tree crushed my car a couple of years ago and guess what I got. Nothing. I had to buy a new car. It sucks.

    Anonymous said...

    There is as much dead wood inside city hall as there is on the city streets. All of which is costing the taxpayers $$$. Plainfield citizens need to get off their lazy asses and come to council meetings! They also VOTE in the elections. Only then can we make changes for the better.

    Anonymous said...

    Hmmmm .. tree falls on van parked in front of Union county Park while left overnight. there is more to this picture methinks. Just how many illegally [not saying that was] parked vehicles are there on the strrets? So many areas have restrictions on parking but not enforced.

    Blackdog said...

    Bad enough that I have to worry about elected officials bringing down the city on top of us through fiscal mismanagement . . .Now I have to look skyward as I walk around town so as to avoid a tree falling on top of me!

    Anonymous said...

    I had a Union County tree branch snap off and damage my SUV. After contacting the County, I received a thick packet of paperwork to complete. I elected not to completed the paperwork, as one of the bullets referenced the fact that if you have insurance, you are to seek reimbursement for damages from your insurance carrier. If it is determined that a complaint about the tree was not provided to the County prior to your damage, they will take no action.

    Hence why I didn't complete the paperwork.

    OB3 said...

    Anonymous the car was parked legally and belongs to one of the residents of this street. (like myself) My neighbors and I have all called the city, and county, about trees both in and outside of the park and gotten no response. This is the result I guess. I was coming home the night this tree fell and my driver and I just made it past the tree by about 10 seconds before it fell.

    Anonymous said...

    After the drought of the Summer of '10, if you drive the streets of Plainfield, you will notice several dead or dying trees located along the streets. One of the obvious damage is the "blown" barks and the dead leaves.

    My concern is that this is the first of many dead trees to fall in Plainfield before the year is out.

    All we need is a good early 'ice storm' or wet snow and we will watch the trees come down.

    Be prepared City of Plainfield.

    Also, I must agree about the amount of dead wood inside City Hall.

    Anonymous said...

    My understanding of the rule is that the city is liable for damage caused by a fallen tree, if the city was responsible for the tree, when the city has prior notice of the dangerous condition of that tree and fails to act. To put Plainfield on notice, one should write a letter, include a photo, and send it registered mail return receipt requested to Public Works. Then you have a record to prove that the city had notice.

    However, for a tree growing in the wild such as the one in Greenbrook Park that fell on the car, or a tree not covered by the Shade Tree Commission, I don't think there is governmental liability even with notice. Nature can do its thing. Better look to your insurance coverage. My insurance covers falling limbs.

    Public Works trimming trees as part of a regular maintenance program is much less expensive than paying an emergency tree service to come in after the fact (I wonder who has that contract in Plainfield). To their credit, Public Works was on my block last Spring, and when I pointed out a dead limb that was a danger to cars parked at the curb, they cut it off in ten minutes. A private tree service working next door had wanted $800. Finally I got value for my taxes and can now sleep peacefully on windy nights thanks to Public Works.