That strategy proved ineffective as the recession was far more severe than anticipated. When an attorney from a previous employer suggested my experience and education qualified me as an expert witness, I considered adding litigation support and expert witness consulting services within my areas of expertise. I spent a great deal of time learning about what qualifies one to become an expert witness, joined FEWA (Forensic Expert Witness Association), attended workshops, spoke with several attorneys about my fields of expertise and expended thousands of dollars retooling the company website to display litigation support and expert witness consulting services along with commercial consulting services.

I was somewhat taken aback when the first attorney called!  With all the time I spent analyzing, marketing and preparing myself to provide expert services, I had failed to consider a process for screening potential attorney clients when they called to discuss their case on the telephone.  As I listened to the attorney’s theory about how the accident occurred, I needed a format to sift out the facts from the opinions espoused by the attorney.  I was uncertain if the attorney was telling me factual information or his version of the facts.

We all know the importance of making a good first impression, especially with an attorney who is listening to every nuance and bit of information you mention over the telephone. Not wanting to loose a potential client due to lack of preparedness, I developed a verbal interview script employed during the initial conversation with an attorney.  The purpose of the script is to organize my thought process, conduct a thorough interview and uncover enough relevant facts to form a preliminary expert opinion and whether that opinion will assist the attorney.

I find it necessary to form an expert opinion during the very first conversation.  The opinion formed may or may not support the position of the attorney.  We strive to avoid accepting a case that discovery later uncovers facts that do not support the attorney you work for, that is why the initial attorney conversation must be in depth, comprehensive and factual.  Attorney opinions are not facts for an expert to base their impartial opinion on.

Like many FEWA members, I have found the monthly dinners, guest speakers, and workshops very relevant and highly educational.  Networking with other members provided helpful information that answered many questions on how to provide professional expert services. By incorporating member suggestions combined with the specific and technical aspects of my area of expertise, I developed a verbal script to use during initial attorney contact.

Early on, I learned the importance of active listening and allowing the attorney to fully describe the case and history without interruption.  Questions developed while the attorney spoke were written down and returned to after the attorney was finished speaking.  I discovered allowing the attorney to speak uninterrupted sometimes provided insight to the strength of the case and the attorney’s belief or understanding of the facts.

Once the attorney completes their presentation, I begin my questioning, establishing the basic facts and time frame of the accident and case.  Many of my cases involve trip and fall accidents due to landscape, tree, plant, line of sight, irrigation or construction hazards. Therefore, gaining factual information about the accident during the telephone discussion is essential to form an opinion.

Basic questions include the date of the accident, time of day, weather  and climatic conditions, site conditions, visibility and obstructions.  What was the condition of the site, the paved surfaces, was the irrigation operating, was there standing water?  Similarly, every expert witness in their field of expertise will have their own industry related questions to seek out answers to form an opinion.

The telephone conversation should clarify fact from opinion.  When the facts are not always clear, attorneys may form their own hypothesis or opinion on how an accident happened.  I accepted a case because the defendant attorney sold me on his theory about why a plaintiff tripped over a steel tree grate located in a busy pedestrian sidewalk.  The tree had been removed, the hole filled in with dirt, the tree grate placed over the dirt.  Three weeks later, a pedestrian caught their foot inside of circular opening in the grate where a tree should have been.  The plaintiff went flying, landed and suffered severe injuries, resulting in a lawsuit against the tree company that removed the tree and the management company that hired the contractor and directed the work.

During our initial telephone conversation, the defendant attorney (my future client) told me when the tree was removed it was not replaced, instead the hole was filled in, the dirt was compacted up to the grade of the grate, but over time the grade somehow settled resulting in a gap that caused the accident. His theory was winter rains had caused the soil to erode away, resulting in the uneven grade, therefore his clients were not responsible and it was an act of God.  He claimed to have NOAA (National Oceanographic and Atmospheric Administration) data supporting his theory of heavy rains.  At the time, it sounded like a reasonable theory, rather than ask for pictures of the site, I allowed myself to agree with his theory and accepted the case.

Photographs later depicted moist soil with numerous footprints through the hole in the grate.  It was obvious pedestrian foot traffic compacted the soil, not winter storms.  I had to advise the attorney his theory was incorrect and he should seek a settlement, as my expert opinion would not support his theory, but rather negligence on the part of one or both of his clients. Fortunately, the case was settled without further incident.

That experience taught me the importance to separate fact from opinion or theory.  I learned to question attorneys during telephone calls and play the role of devils advocate.  They usually appreciate hearing technical information that might impact their case, whether positive or not.  In certain instances, you might be doing the attorney a favor by warning them off of a case.

If I’m still uncertain about the facts of a case, I’ll ask for pictures or important documents be emailed to review in order to form an opinion before accepting a case.  I found this very helpful and it has made an enormous difference in understanding the dynamics of a case and developing an impartial opinion.  You might also find an attorney will pay you as a consultant to review the information prior to determining your opinion.  I had an attorney call; he wanted to know whether a tree branch could droop down during a rainstorm.  His client encountered a tree limb blocking an exterior stairway, while trying to avoid the branch, the person fell down the stairs.  He wanted to send me pictures and pay   my time to review and offer an opinion because he was unsure about the validity of the case and whether his client claims made sense.  We did just that, I charged him for an hour or two of consulting time and was able to render an opinion that turned into a case that eventually settled in mediation.

Landscape, arboriculture, horticulture and land development are fields many attorneys are unfamiliar with.  During our initial conversation, their lack of technical knowledge becomes evident.  It is incumbent for me to provide the technical context to enable them to understand the facts, yet at the same time, not expose to much information to an attorney who is simply on a “fishing expedition”.   This is a great opportunity for an expert to highlight their technical proficiency and showcase how their abilities may benefit the attorney.  Provide enough information to impress, not too much where you give away your services for free.

In conclusion, preparation is paramount to success.  You only have one first time opportunity to impress a potential client with your knowledge and professionalism.  Make the most of it, be prepared!

My appreciation for trees dates well back to my childhood days spent at summer camp and camping trips with my family. I still remember the distinct fragrance of the California Sycamore trees that provided shade during the summer camp months and wonderful Coast Live Oak trees encountered throughout California hillsides and campgrounds.

As a certified arborist, professional horticulturist, licensed landscape contractor and land development professional, my perspective on tree aesthetics and utility is now tempered by the business reality of liability and the risk trees create. An old specimen tree viewed from a liability perspective is a completely different experience than enjoying the historical or horticultural wonders the tree may present. In fact, when viewed from a risk management perspective, the same wonderful historical or landmark tree could pose a potentially serious safety threat or legal liability. Imagine the beautiful Coast Live Oak above in an urban setting with some of those branches hanging over a vehicle!

Premise Liability and the Property Owner

It is a property owner’s legal duty to maintain their premise in a safe, hazard free condition and that responsibility also applies to the trees on their property. Whether a homeowner, business, or homeowner association, an integrated inspection and maintenance program can reduce an owner’s exposure to expensive negligence lawsuits while improving the aesthetics and health of the overall landscape. Minimizing the potential harm or loss from a tree related accident is a proactive form of tree risk management.

There are two principle forms of risk associated with trees. Whether the tree is located in a public or private setting, there is potential risk for the tree to cause physical harm or property damage. Typically, it is the public at greatest risk for experiencing harm caused by a tree failure. There is also the financial risk borne by the Owner caused by the potential failure of the tree or tree part.

While many municipalities focus on the financial risk associated with tree failure, owners should focus on the risk of physical harm as the reason and foundation for developing an effective risk management program. Unfortunately, there are no existing inspection standards for tree hazard or risk management in the United States. Jurisdictions implement their own standards, trade associations such as the International Society of Arboriculture (ISA) and American Society of Consulting Arborists (ASCA) are working toward standardization of specifications, techniques, and risk evaluation, but it is still a matter for each property owner to monitor and care for their trees, preferably before they become a legal liability.

Tree Protection Plans During Construction and Development

In San Diego County there is a community that was developed in an existing and enhanced Eucalyptus tree forest. What appeared a great idea 30 or 40 years ago to create an urban Eucalytus forest surrounding a residential suburban community now appears to be a risk management nightmare as 100’ plus tall, 24”-36” diameter Eucalyptus trees drop limbs or suffer complete structural failure falling onto adjacent homes and unfortunately, killing and injuring the public.
In the past, when land was under mass development, existing trees were paid little attention other than objects to be removed during grading. In some instances, specimen trees may have been transplanted and relocated, trees retained in the landscape were usually neglected or had minimal devices installed to protect the tree during development. When a property is under development, the focus is on grading and infrastructure, utilities and street improvements, protecting existing trees is usually overlooked or a very low priority.

With time and recognition of the value and aesthetics trees create, development and politics have combined to create new incentives to preserves trees. The public clamors for “green” improvements in sustainability and now demands trees be retained and preserved. Unfortunately, in some cases the pendulum has now swung to the opposite extreme, whereby the public or property owner is insisting on preserving a potentially risky tree without realizing the potential consequences.

That is why it is imperative to protect and preserve existing trees in a construction zone to ensure their overall health and vigor during and after the construction process and to prevent the tree from becoming a future liability due to damage caused during construction. Most people might not notice symptoms of tree decline caused by construction activities. Without proper protection, tree roots may be damaged by soil compaction or grade change. Trees are often damaged by construction equipment striking limbs or scraping the trunk. Utility trenches cutting across or through root tree root systems seriously undermine the mechanical stability of the tree while compromising the trees ability to absorb water and minerals from the soil.

In instances where historic or specimen trees were retained in and around development, those trees eventually had to be removed due to declining health conditions and the increased risk these trees possessed. Had they been better protected during the development process, there would have been increased likelihood of successful retention of these valuable assets.

Managing Tree Risk Through Policy and Action

Let’s define a policy as a line of argument used to rationalize a given course of action. From an ownership standpoint, having a documented tree risk policy is extremely important. The policy provides a clearly defined direction and course of action for managing the risks associated with tree resources or assets. If a tree failure results in a legal action, having a documented policy is the basis for a legal defense. By having a tree risk management policy, Ownership demonstrates their legal duty to maintain their trees to protect the public and the actions they took to address the risk. Obviously, having a tree risk management policy is better than having no policy at all.

While a policy and procedures are best management practices for larger businesses and homeowner associations, an individual property or homeowner can benefit from a simplified annual inspection and maintenance program without having to have a written tree risk management program. By having a certified arborist inspect the trees annually and implementing the recommendations made in the inspection report, a property owner is demonstrating their duty to protect the public and reduce the risk associated with trees on their property. In so doing, the owner is building a basis for a legal defense in the event of tree related litigation.

Whose Duty is it Anyway?

Owners who think a tree failure is considered an Act of God as a defense will find this to be untrue. Courts across the country have found property owners have the duty to inspect, maintain and correct hazardous tree conditions that inhibit line-of-sight. There has been a natural progression toward statutes that deal with premise liability and the duties owed to guests and the public regarding “foreseeable” problems from trees.

Over time, the legal industry has worked to extend this duty or responsibility to developers, builders, property managers and other property professionals, including those who act in a property owner’s stead. If you work as an agent for an owner, you could find yourself having inadvertently taken on the “duty to inspect” and increased your exposure to a liability lawsuit.

The legal duty for property owners or those acting in their stead to protect visitors, workers, guests, pedestrians or vehicles from hazardous conditions exists in many states. Acknowledgement of this duty is witnessed in the daily maintenance activities and repairs made to fences, sidewalks, walls, gates, building edifices and more. Obstructions are cleared in sight line corridors to insure traffic flow and safety. In many states, the same duty to protect the public has been extended to trees and their appropriate maintenance requirements.

A routine annual tree inspection can in theory, be performed by anyone. However, many tree problems are difficult to detect and require a trained professional to identify hidden deficiencies. A knowledgeable arborist should perform a visual tree assessment, including tree identification, growth characteristics, size, tree biology, and site specific environmental influences. Most importantly is the risk evaluation of a specific tree branch, limb or complete tree failure and risk of harm to any surrounding potential target(s).

Managing Tree Risk

The tree above was a 10-ton Erythrina (Coral tree) that fell and crushed the car below. The tree was noted to have lost a limb earlier but was not properly inspected, nor was the risk abated. http://www.stuff.co.nz/auckland/470947

Trees pose a risk only when there is a target. A target can be a person, animal, property, vehicle; almost anything of value can be considered a potential target.
In the urban forest, trees are located in immediate proximity to people, buildings, vehicles, and countless moving and stationary targets. Sites requiring special attention due to increased risk include parks, schools and playgrounds, campuses, golf courses, athletic fields, and adjacent buildings. While the simplest means to reduce risk is to remove the target, that is not a practical reality in most urban settings. Therefore, an active risk management plan or policy will help reduce the risk of your trees causing a serious accident or injury resulting in a lawsuit.

1. Schedule an annual visual tree inspection and hazard evaluation by a certified arborist.
2. Implement the recommendations made in the inspection report.
3. For larger properties, consider a risk management policy and program.
4. For larger sites, implement a tree inventory log, noting identification, location, size, health and special characteristics of all site trees.
5. Work with a certified arborist trained in visual tree assessment and tree hazard evaluation.
6. Maintain written records, pictures and documents that support your efforts to maintain and protect the public from tree related hazardous conditions.

Conclusion

There are certain “red flags” used in visual tree assessment that you should be aware of. If you notice any of the following symptoms on your trees, contact a tree professional immediately:

• Large holes, fissures and cracks in the tree trunk
• Obvious areas of rot or decay including tree hollows
• Presence of birds, insects, ants etc streaming into tree openings
• Broken branches, dead and hanging limbs
• Sucker or aberrant growth
• Conks, mushrooms or fungi fruiting bodies at base of tree or on trunk
• Any line of sight obstruction

Although a property owner may not want to know, thinking ignorance of a condition eliminates potential liability, our judicial system continues to find owners have a duty to inspect and maintain their properties and ignorance of a hazard is not an adequate defense.

The benefits of implementing an annual tree inspection and maintenance:

1. Increase in tree aesthetic appearance, health and vigor.
2. Increase in tree and property value.
3. Reduction in tree hazard risk.
4. Foundation for a legal defense.

An ounce of prevention is worth a pound of cure. Using a certified arborist for an annual tree inspection and monitoring program is an effective means to reduce tree hazard risk while improving the health and vigor of your investment. Just as you maintain your home, vehicles and other physical possessions, trees grown in the urban environment must receive the proper care and maintenance to keep them in a healthy, vigorous and safe condition.

Article Acknowledgments:
Mr. Mark Duntemann, Natural Path Urban Forestry, Seminar on Tree Risk Management, August, 20, 2010.
Premise Liability and Your Trees, by Petger S. Beering, Esq. and Judson R. Scott, RCA #392, American Society of Consulting Arborists, #3, 2010

The Basics on Landscape Design, Tree and Shrub Selection for Southern California Landscapes

 
I am most definitely a native SoCal.  Born in the San Fernando Valley in Los Angeles, educated at UC Santa Barbara and California Polytechnic University, living in San Diego for many decades, I have lived in Southern California my entire life.
 
Yes, we complain when we have hot spells, (last summer was ridiculous), Santa Ana winds, and the fog, but overall, we have the best climate in the world for growing plants.  Whether for ornamental landscapes or vegetable gardening, we a blessed with a climate and environmental conditions that allow us to grow an incredible variety of trees, shrubs, ground covers, turf, vegetables and fruits pretty much 365 days a year.
 
Walk or drive throughout our neighborhoods and check out the incredible plant diversity.  We are very accustomed to the trees and plants that surround us.  However, if you are from the midwest, east coast or other parts of the country or the world, you are most likely amazed at the variety of plant material.  Botanical gardens and arboretums from Santa Barbara to San Diego boast incredible displays of plants from around the world that flourish in our mild Mediterranean climate.
 
We have neighbors recently moved to San Diego from Kansas City.  They purchased a home and want to landscape but are completely baffled about what to plant.  Obviously, the trees and shrubs they were accustomed to in Kansas City were very different from what is available for landscaping in San Diego.  I offered some suggestions to help simplify the plant selection process.
 
There are many approaches one can take to designing and installing an ornamental landscape for their home or place of business.  Using a landscape architect to design a planting and irrigation plan is an excellent choice, however it can be costly.  Landscape contractors can provide design services as part of a design build contract, however you might feel uncomfortable about possible conflict of interest, and whether the contractor is truly knowledgeable about plant material and design.  Then, there are the millions of property owners trying to do it themselves.  This article is for you!

Where to Start?

Don’t get caught up with or distracted by endless design themes and details.  If you have a certain theme in mind, fine, then you most likely already know the kinds of plant material you want to use.  I prefer to design and select plant based on the site environmental conditions matched to the cultural requirements of each plant to be used in the landscape.  What does that mean?

What are Environmental Site Conditions?

The first step in selecting plant material is determining your specific site conditions.  There are many factors that affect plant growth and they are reflected in your site.  Analyze your location and be able to answer the following questions:

1. Does the site face the north (full shade), east (part shade part sun), west (part sun – full sun), or south, (full sun).  Determining the site sun exposure is one of the most important environmental conditions.
2. What are the temperature extremes.  Does the site receive cold weather extremes such as frequent frosts, freezes, snow or hail?  Does the site receive intense heat?  Determine the temperature extremes as well as the average seasonal temperature for your location.
3. Is the site near the coast where it will receive constant salt air and sea breezes?
4. Is the site windy, contain microclimates, protected by a structure?
5. Is the soil a heavy, poorly drained clay or lighter, well drained loam, or sand?
6. Is the soil structure friable and fertile or dry and compacted?
7. Does the site drain well or is water trapped onsite or on top of a perched water table or spring?
8. Are there rodent or pest or disease problems?
9. Are there physical site constraints such as overhead or underground utilities, concrete or masonry improvement?

 
These are just a sampling of typical environmental site conditions that affect plant growth.  The more you know about the site to be landscaped, the better informed you will be in order to make appropriate plant selections.
 
In the next installment, I’ll discuss plant cultural requirements and the importance of selecting plant material with cultural requirements that match the site environmental conditions, a key to successful landscape project!

SOHO, (Save Our Heritage Organization), filed suit two years ago to block the city from proceeding with the proposed design.  On February 4, 2013, SOHO claimed a great victory when Superior Court Judge Timothy Taylor ruled the City Council violated municipal code and utilized “faulty logic” in approving the Plaza de Panama Committee plan last July, 2012.  Judge Taylor ruled the City “abused its discretion” in approving the project and ruled to set aside the project’s required Site Development Permit.

Key to the ruling was according to municipal code for historic sites, the City was required to find that the project site would otherwise have “no reasonable beneficial use” in order to have the permit approved.  Obviously, Balboa Park has a great deal of “beneficial use” without the permit issuance, which the City seemed to ignore in their decision to proceed with the committees recommendation, perhaps the reason Judge Taylor deemed City Council had “abused it discretion”, used “faulty logic” and held that “the critical finding by the City Council is so lacking in evidentiary support as to render it unreasonable; it must therefore be set aside”.

Balboa Park is a rare and extraordinary site located in the urban center of San Diego.  This has been a free “peoples park” for locals and tourists for generations.  Supporters of the Plaza de Panama project contend it would reclaim the park from cars that currently drive through the park to reach parking lots.  Opponents to the plan claim while one small area of cars would be freed up, the remainder of the park would be dominated by traffic, new buildings and acres of concrete parking lots.  Tranquil Alcazar Gardens would become an automobile, bus and delivery zone.

With so much as stake for one of San Diego’s most important, historic and enduring landmarks, why has the City of San Diego failed to find an agreeable compromise?  Balboa Park is a historic resource that should be protected and sensibly improved to benefit  ALL the citizens of San Diego, not just special interest groups or donors such as Mr. Jacobs, who pledged to donate $30 million for improvements, but only using the Plaza de Panama plan, in other words, the philanthropic donation had political strings tied to it.  Not much of a philanthropic gesture in my opinion.  If Mr. Jacobs is truly interested in improving Balboa Park for ALL citizens, tourists and park visitors, he donation should not be tied to a specific design.

While I have spent a career working in land development, I am also a proud citizen of San Diego and I do not want to see the historic Cabrillo bridge turned into a freeway, and do not want to see the western historic architectural facade of the existing buildings destroyed because of a poorly conceived traffic circulation plan.  There are better alternatives available and the City Council needs to stop considering free donations with strings attached as the reason for choosing one alternative plan over another.

Balboa Park was conceived and developed as a free park for all citizens to enjoy.  That was the original intent, we should honor that objective in careful deliberation about the future of how to thoughtfully redevelop the park for future generations.  Lets not rush to a limited decision so we can have a park renovated in time for the centennial.

Click to read the full SOHO article, SOHO Wins! Balboa Park Saved!

Mr. Burke claimed the cutbacks in the City of San Diego trimming and inspection services contributed to leaving a dangerous tree in place that should have been removed.  The City of San Diego claimed it was an unforeseeable accident and the city was not responsible.   Certified and consulting arborists face this dilemma daily.

Even when paid to inspect and assess a potentially “risky” tree, there is no guaranteeing the accuracy of a risk assessment.  However,  best management practices established by the International Society of Arboriculture in tree risk assessment continue to improve and are the current state of the art in trying to identify tree defects that increase risk to people and property.

I do not believe there is a quantitative or qualitative measure whether city cutbacks contributed to this tree accident.  Even without cutbacks, the city may have never notice or inspected this or other at risk Queen Palms.  At the same time, the city is tasked to protect the public.   As a public agency, their park and rec department should be highly suspect of old trees (40 years plus) planted in restricted parkways (2′ wide) with turf grass underneath  Inverted cone syndrome from years or decades of constant turf mowing and string trimming is a fairly easy defect to identify.  Oozing from spike holes is obvious.

There are lots of inappropriately located trees throughout our urban forest.  Many older parts of the city have small restricted parkways planters, as small as 18″-24″ wide, with huge palms and other large Ficus and Eucalyptus trees  planted within.  Concrete sidewalks, curb and gutter is lifted surrounding these plants.  These old trees were fine 50 years ago, but many have now outlived there usefulness and are in inappropriate locations creating potentially hazardous situations.   Be aware of trees around you, your home and vehicle.  Accidents happen, reduce the risk posed by hazardous trees by consulting with a certified arborist and certified tree risk assessor.

Click to read the full article

About Jeremy Rappoport 

When I began offering certified arborist, landscape, horticulture, and site development expert witness consulting services in San Diego, California, a business associate asked which “side” I worked for, the defendant or plaintiff.  He did not want to refer the incorrect potential client to me.  I was taken aback, my lack of experience had not prepared me for this question.  How could an expert work for only one side or the other without appearing as an advocate?  My answer to him was simple, I use the case facts and evidence to determine the standard of care issue in deciding to work for either a defendant or plaintiff attorney.

Of course, impartial cuts both ways, and if discovery information leads me to an impartial opinion not in the best interest of the client, professional integrity requires I inform the client why my opinion does NOT support their position.  When this occurs (and fortunately very infrequently), you can still benefit the client by instructing council on why their case is not supported by the scientific, technical or forensic evidence. This information may assist council in deciding to not pursue a case, or pursue settlement discussions.  I minimize this situation through careful and extensive telephone screening of incoming requests.

It is challenging to maintain a neutral position during a telephone discussion with a potential client.  Naturally, we all want to build our practice, so when a potential business contact occurs over the phone, careful listening, screening and asking pertinent questions is extremely important to ascertain whether the information provided by the potential client is a position I will arrive at independently on an impartial basis.  Regardless of the information and position propounded by the attorney, maintaining neutrality during a telephone conversation is essential to protect my integrity as an impartial expert who arrives at his opinion based on fact and discovery, not being bought or convinced by a client’s presentation.

Whether a defendant or plaintiff client, the common thread is determining satisfaction or failure to meet industry or professional standard of care.  Ascertaining this information during initial discussions is an essential tool I use in screening potential clients.  If a defendant call, the information provided during questioning should establish a reasonable degree of certainty the client satisfied the professional or industry standard of care, conversely a plaintiff contact should provide convincing and truthful information detailing why the defendant failed to satisfy the standard of care.

For this reason, I provide expert witness services for both defendant and plaintiff cases because determining the standard of care from a technical perspective should be an objective, impartial process.   Through the telephone screening process, I am able to ascertain whether an attorney is knowledgeable about the technical aspects of the case or if they might be creating their own theories.  Fortunately, most of the attorney’s I have worked with had a thorough, detailed understanding of their client’s position that simplified the screening process.  They provided sufficient information and facts that instilled confidence I would be able to reach an impartial expert opinion in their favor if discovery supported their information, which has consistently turned out to be case.

I provide plaintiff and defendant clients with expert opinions in the field of landscape, arboriculture, horticulture and land development.   My opinions are qualified and supported by decades experience as a land development professional, certified arborist, certified tree risk assessor, professional horticulturist and licensed C-27 California landscape contractor.   Cases involve a variety of tree, plant, landscape and development issues.  Most common are trip and fall cases caused by incorrect sprinkler type or other landscape and irrigation appurtenances.  Numerous tree cases involving tree limbs encroaching property lines, potentially unsafe trees and tree risk assessment.  Improperly selected or poorly maintained plant material has resulted vehicular accidents and fatalities.  A fraudulent final map and land sale resulted in a plaintiff lawsuit when they were unable to develop the parcel in a timely manner.

The common thread is determining the industry or professional standard of care.  Decades of experience and education taught me the skills to efficiently distill facts and evidence from story and fiction. When due diligence is complete and my opinion formed, it is very important to communicate the technical reasons that support my opinion in simple to understand yet convincing narrative to the client.

Arborist, landscape, tree and plant, horticulture, and land development issues comprise a relatively small niche in the legal industry.  However, trees, plants, landscape and irrigation systems are a part of the urban environment.  As construction and development activities increase, accidents resulting in personal injury and property damage occur.  Landscape construction defects may go undetected for years before manifesting into a serious situation.  Tree limbs and roots grow over property lines, damaging property and causing serious injury.  Unlicensed or unknowledgeable contractors abound, many using illegal, outdated contracts, or worse, no written contract, inexperienced or overly aggressive general contractors and subcontractors create project conflicts through unknowledgeable supervision, missing written change orders and documentation.

Forensic determination of the cause of an accident due to landscape or trees is a regular part of my consulting practice.  In landscape construction, forensic analysis is extremely challenging due to the living and changing nature of the plant material, soils, segregating and determining design flaws versus construction contracting or maintenance practices, all are intertwined into a potentially difficult knot to unravel.   You have to have the knowledge and experience to know how and where to drill down and find the facts, evidence and documentation needed to support an expert opinion.

Landscape, arboriculture and horticulture are actually separate fields of study leading to different careers. Ornamental horticulture focuses on trees and plants used for non-food crop, such as landscape, nursery and floriculture.  Arborists have in depth knowledge of tree while landscape contractors install and maintain landscape. Tree, plant and landscape cases often overlap, when that occurs, having a knowledgeable landscape expert versed in all related fields can make all the difference, regardless if a defendant or plaintiff case.

Rappoport Development Consulting Services LLC is an independent certified arborist, certified tree risk assessor, landscape, horticulture, land development consulting firm. The company offers landscape expert witness services, for attorneys and insurers and professional consulting services for certified arborist, tree risk assessment, landscape and horticulture and land development.

Why use just an arborist or a landscape contractor when you can have a professional consultant experienced in landscape , arboriculture, horticulture and land development!

The South Bay Bus Rapid Transit is currently in planning and will eventually be a  21 mile service connecting the Otay Mesa international border crossing with downtown San Diego via eastern Chula Vista. The SBBRT project is being designed and built through SANDAG, the San Diego Association of Governments. SANDAG hired Kimley-Horn & Associates for engineering and environmental planning services for the SBBRT project, currently planned to go into service in late 2014.

The first segment of the project involves design and construction of 13-mile Bus Rapid Transit line between downtown San Diego and the Eastern Chula Vista. The route will use East Palomar Street, I-805 and state route 94 for the BRT line. The new line is expected to provide Chula Vista, National City and San Diego residents with a fast, frequent, reliable high quality transit service along arterial “transit only” lanes.

The SBBRT project will bring high speed dedicated rapid transit bus lanes and elevated platforms for easy and quick loading and unloading. The goal is to offer a mass transit alternative  along a corridor and area that currently does not have one. The BRT service will make it faster and easier for commuters to use mass transit because the specially constructed buses will use “transit priority” lanes, combined with traffic signal improvements, fewer station stops and real time passenger and bus information.

East Palomar Street is a major arterial street with an east-west alignment. A portion of the SBBRT is currently being designed and engineered by Kimley-Horn and Associates, a national design, engineering, and environmental engineering and consulting firm, with local offices in San Diego. The high speed bus lanes are designed to be constructed in the existing median strip and median planters that exist along East Palomar Street. New bus stations will also be built in close proximity to the high speed bus lanes for easy, safe egress and access to the buses.

East Palomar Street medians and right of ways contain over 1,500 existing trees and palm trees along a 3.5 mile portion of the SBBRT alignment. Plans call for demolition and removal of all trees within the medians and the right of ways. KHA sub-contracted with Rappoport Development Consulting Services for environmental consulting services including certified arborist, horticulture and landscape consulting services. RDCS will provide  tree inventory summarizing the quantity of various tree species, tree condition, and maintenance needs. The findings will be summarized in an arborist report including analysis and recommendations for disposition of the existing trees. Additional scope includes tree labeling,  developing an opinion of costs, tree related specifications, details and best management practices.

Portions of East Palomar Street were developed anticipating the design and construction of future bus lanes within the medians. In those areas where the bus lanes were anticipated, trees were planted within the outside portion of each median to accommodate new lanes within the median between rows of trees, and it is hoped many of the existing Mexican Fan Palms can be re-used with minor relocation within the newly design medians. In older portions of East Palomar Street, the future high speed bus lanes were not planned for and existing medians contain trees located in the center of the median that will have to be removed. The street width must be widened within the north and south right of ways to accommodate the new bus lanes within the center of the street.

The current street tree plantings along East Palomar Street are dominated by two trees, Pyrus calleryana, known as the Bradford Pear and Washingtonia robusta, the Mexican Fan Palm. Secondary trees include Koelruetaria bipinnata, the Golden Rain Tree and Corymbia ficifolia, the Red Flowering Gum. In general, the street tree theme has a formal emphasis with trees planted in centered row alignment. The Bradford Pear is a heavily used street tree in Chula Vista. The tree goes deciduous through the winter then produces a massive profusion of white flowers in the late spring. While an extremely showy tree during flower, after it flowers it becomes a shade tree and can be boring when overused.

The Mexican Fan palm is iconic to the City of Chula Vista and Southern California in general. Most of the palm trees are 17 to 25 feet tall and provide a architectural form the palm is famous for. It is anticipated most of the existing palm trees will be reused in the new bus lane street tree planting.  A certain number of the palms will remain in their current location while others are relocated to select areas of the project.

RDCS is certified by the California Department of General Services as a small business enterprise. RDCS LLC set a precedent being the first certified arborist consultant approved by SANDAG to the SANDAG A&E Bench (Architectural and Engineering).

With this designation from SANDAG, RDCS continues to raise awareness about the importance of our urban forest and the positive attributes a certified arborist and professional horticulturist can bring to a public works project. Jeremy Rappoport, President of RDCS expects to team with the in house landscape architectural team and various project stakeholders in developing and selecting a new, exciting and climate appropriate street tree palette for the SBBRT project.

RDCS LLC is an approved small business on call sub-consultant for Master Engineering, Architectural and Environmental consulting firms throughout California. Jeremy Rappoport, President of RDCS LLC, is a former director of land development, land development manager, purchasing agent, landscape and grading superintendent for public and private master development companies and homebuilders. Jeremy is a C-27 California landscape contractor and professional horticulturist, with a B.S. degree in Ornamental Horticulture from California Polytechnic University, Pomona.

Mr. Rappoport combines credentials as a certified arborist, certified tree risk assessor, C-27 landscape contractor and decades of land development expertise with a B.S. degree, continuing education and training to provide commercial, professional tree, plant, landscape and land development consulting

Who Is SANDAG and What do They Do?

SANDAG, the San Diego Association of Governments is a public agency comprised of eighteen cities and county government. SANDAG builds consensus and serves as a forum for regional decision making. The agency is responsible for strategic planning, and allocation of resources such as planning and engineering for building public transportation projects.

SANDAG is governed by a Board of Directors including mayors, county supervisors, and council-members representing the region’s nineteen local governments. Additional advisory representatives are from the Imperial County, U.S. Department of Defense, Caltrans, San Diego Unified Port District, Metropolitan Transit System, North County Transit District, San Diego County Water Authority, Southern California Tribal Chairmen’s Association, and Mexico.  The Policy Advisory Committees assist the Board of Directors in carrying out the agency’s work program.

In January of 2003, state law consolidated SANDAG’s responsibility with many of the transit functions of the Metropolitan Transit Development Board and the North San Diego County Transit Development Board. This allowed SANDAG to assume full control over transit planning, project development and eventual project construction within the San Diego region.

What is the A&E Bench?

In their role as a planning, design and construction management agency, SANDAG maintains a contracting and procurement website seeking firms to register for a variety of services including:

- Construction, general contractors, and construction management
- Engineering, design, planning and environmental
- Technical  services, GIS mapping, software development
- Marketing and public outreach
- Financial, legal, consulting, and training services
- Computer, copy equipment and office supplies

The SANDAG website welcomes registered prime contractors and engineering consultants to visit the A&E Bench section of the website. The Architecture and Engineering (A&E) Bench is comprised of small business firms for On-Call Architecture and Engineering Design and Environmental programs.  A&E Bench consultant contracts provide sub-consultant services for transportation and infrastructure projects throughout San Diego County. Disadvantaged Business Enterprises (DBE) and Small Business (SB) firms are encouraged to join the “Bench” to participate in meeting these efforts.

Bench consultants include A&E firms that are certified as DBE by the California Unified Certification Program (CUCP )or SB by the Department of General Services. (DGS). The Bench is open to DBE and SB firms that provides a variety of professional A&E services. The Bench serves as a pool of certified firms that prime engineering consultants and general contractors may access to work on their SANDAG project.

Rappoport Development Consulting Services Added to the A&E Bench!

Rappoport Development Consulting Services LLC is a registered SANDAG vendor #216240. RDCS LLC is now an approved A&E Bench consultant.  RDCS is proud to be the FIRST certified arborist consultant added to the SANDAG A&E Bench.  RDCS LLC is certified by the California Department of General Services as a Micro Small Business #1665480 and is so listed as a SANDAG A&E Bench consultant.

Prime engineering consultants and prime contractors providing services to SANDAG can now benefit by using a certified small business sub-consultant for tree, arboriculture science and arborist issues.  Transit and infra-structure projects often impact existing tree populations that require data collection, analysis and consideration of best management practices.  Typical arborist consulting services may include  tree tagging, labeling and tree inventory, tree risk assessment, tree health assessment, tree appraisals and valuation, developing tree construction protection plans and best management practices, tree management programs and field construction supervision, observations and arborist reports.

Since many SANDAG projects are transportation related, existing tree populations may affect the design, development and construction for transportation corridors.  By adding RDCS to the A&E Bench,  SANDAG recognizes the importance of preserving our existing urban forests and street trees while developing new transportation routes.  Providing a certified arborist, landscape and horticulture professional to the A&A Bench allows prime consultants and contractors  the opportunity to seek a SANDAG approved professional certified arborist, landscape, tree and plant consultant.  Engineering, landscape architect and environmental planning firms can now benefit using an approved small business SANDAG A&E Bench consulting arborist, saving the hassle of having to search for an unapproved consultant and try to qualify them with SANDAG.  In certain instances, a prime consultant or contractor may receive favorable consideration and or financial incentive using an certified small business.

Jeremy Rappoport is a  certified arborist WE-9083A, a certified tree risk assessor CTRA 1220, a licensed C-27 landscape contractor #436000, professional horticulturist with a B.S. degree from California Polytechnic University Pomona, California and an experienced land development construction professional.

In related news, with the certification of RDCS LLC as a small business, RDCS LLC is an approved A&E Bench Consultant for SANDAG projects.  Master consultants choose to seek certified arborist sub-proposals from RDCS LLC for SANDAG public works projects throughout San Diego county.  This is a tremendous benefit for master environmental and engineering consulting firms to add RDCS LLC to list of qualified certified arborist sub-consultants.

Environmental and Engineering firms working on large transportation, utility, and infra-structure public works and private improvement projects often times experience issues related to existing trees located in the path of or adjacent to public and private improvement projects.  When this occurs, agencies may require using a certified arborist as a sub-consultant.

As a sub-consultant to environmental and engineering firms, as well as general contractors, RDCS LLC provides multiple consulting services including:

• Tree Inventories
• Tree risk and health assessment
• Tree construction protection and preservation plans
• Tree Best Management Practices (BMP’s)
• Tree appraisals.
• Tree risk and tree management plans.
• Field monitoring, inspections, supervision

General Consultants and Contractors can now benefit by having a professional, certified arborist consultant and receive a 5% bid preference using a  California certified small business

Give Jeremy Rappoport a call at 858-205-4748

State of CA. SBE Certification03072012_00001

Depending on the industry, landscape construction and maintenance standards and specifications vary dramatically. Public works, commercial, sub-division and other types of large-scale landscape projects typically utilize a landscape architect for conceptual design, working drawings and construction plans. The landscape plans not only illustrate plant and tree location and size, but also provide notes, details and specifications concerning construction technique. Contract documents are usually robust and include a full set of landscape and irrigation plans, details, specifications, sometimes soil reports, soil tests and related construction drawings that may include grading, drainage, underground utilities and other construction drawings.

This level of commercial landscape is usually the most inspected and regulated form of landscape construction work. The contractor bids the work according to the plans and specifications provided by a third party professional (the landscape architect). If awarded the contract, the contractor must install the work consistent with the landscape plans and specifications. Government, commercial and large scale landscape projects often refer to standards established by the Public Works Green Book, or local, County or State landscape standards and specifications.

Government, public works, sub-division and commercial landscape projects are designed and inspected by third party professionals to help insure the landscape contractor has completed the project in substantial conformance to the contract documents. One of the primary drivers for this level of professional design and scrutiny is to ensure the product will grow and flourish while at the same time providing for public safety.

Got Plans?

Not all landscape projects are for government, public works, commercial and sub-division construction. Residential and commercial landscape projects such as condominium, apartment, and multi-family projects managed by homeowner associations and property management companies sometimes do not utilize a landscape architect or landscape design professional. When a project does not have a set of landscape plans, drawings, details, and specifications, bidding, construction, installation and maintenance can become challenging and problematic.

As mentioned earlier, landscape plans, details and specifications are the roadmap for contractors to follow when bidding, constructing, maintaining or servicing a project. The contractor is directed how, when and where to install the various project elements. Therefore, when an Owner or General Contractor requests a landscape proposal without providing plans, the contractor is free to bid the work however they see fit. This also places the contractor in the role of a landscape design professional; a role the contractor is not trained or licensed for. This situation may also create a conflict of interest and removes inspection safeguards by a third party. Worse still is when an Owner requests a gardener or handyman to bid landscape work without any plans or contract documents.

The landscape, irrigation, arboriculture and nursery industries continue to grow and innovate, in response, local government agencies, industry associations, landscape architects and certified arborists have developed numerous landscape, irrigation, construction installation and maintenance specifications and standards. The purpose behind developing and implementing landscape standards is to continually work at improving the level of landscape consistency and professionalism while at the same time producing a vigorous, living product that does not pose a safety hazard or endanger public safety.

Value Engineering Your Way to a Lawsuit?

Whether a project comes with a set of plans or not, the Owner may be looking for a way to reduce costs. This might lead the Owner to request “value engineering” from the landscape contractor. Value engineering is the process whereby certain items bid in a project may be reduced in size, quantity, manufacturer, or other method to reduce the cost of the installed item, while still delivering the minimum required performance, thus providing a certain “value” to the Owner. Unfortunately, unscrupulous contractors can manipulate value engineering as a means to lower their proposal to obtain the job, then installing products far below the original specification and not delivering any “value” but instead a poor quality product.

Using a contractor to provide value-engineering suggestions can be a valuable, cost saving tool, however it should not be used during the bid process or in selecting a contractor. To avoid conflict of interest, value-engineering suggestions by a contractor should be closely reviewed by the Owner and third party landscape professionals for functionality and safety considerations. Sometimes, very simple changes can have drastic safety implications. Changing sprinkler head type, reducing specifications for root barrier, even thickness of a layer of bark mulch can have serious legal consequences.

Cheap Installation Versus Expensive Lawsuit

As a landscape expert witness, I have been involved in a number of trip and fall lawsuits. A common trip and fall hazard relates to sprinkler heads, particularly the use of a shrub head on a riser versus using a pop-up sprinkler head. Industry standards and regional specifications typically require pop-up type sprinkler heads adjacent to paved surfaces including sidewalks, curbs, pathways, driveways or other paved or sometimes unpaved surfaces, wherever pedestrian use is expected. The reason is simple, to keep the sprinkler head retracted below the turf grade when not in operation so pedestrians will not trip over a sprinkler head when walking adjacent to turf areas.

A shrub head on a riser is just as the name implies. It is usually a spray orrotor type shrub head that sits atop a rigid schedule 40 or schedule 80 PVC plastic riser. The riser or nipple, may be twelve to eighteen inches above adjacent grade and is often times staked in place using metal stakes or even steel rebar. This type of assembly is fixed in place and does not retract.

There is perfect reason and justification for using spray head on risers. They are cheaper than pop-up head assemblies; perform well and are safe to use when not adjacent to pedestrian or vehicular use. They work well at the back of planters and on slopes. Pop-up heads are the industry standard for using in turf and planter areas adjacent to pedestrian and vehicular traffic areas. Pop-up heads are manufactured in a range of sizes to accommodate the intended use. Four inch pop-up heads are the standard for turf areas while twelve or eighteen inch pop-up heads are used in planters, shrub beds and slopes that are adjacent to streets and sidewalks. Due to their more complex construction and increased installation time, pop-up heads cost more to install than a shrub head on a riser.

For projects with plans and specifications, the contractor does not get to decide what type of sprinkler head to install. For projects that are cost driven without plans or specifications, the Owner may direct or request the contractor to reduce the cost by substituting or “value engineering” their proposal. In this instance, an uninformed, inexperienced contractor may suggest using shrub head on riser rather than pop-up heads to save money. Worse still is when an uninformed Owner requests a proposal from a gardener or handyman without any idea of what this unlicensed individual is going to install.

This is a short-sided and potentially risky decision to undertake as minor cost savings by changing to a cheaper sprinkler head installations may result in a trip and fall lawsuit that could cost far more than any savings derived by using a cheap sprinkler head installation. I worked for a plaintiff attorney whose client tripped over a shrub head on a riser that was placed in a small planter adjacent to the service walk to the front door of the house. The homeowner tripped over the sprinkler, fell and crashed into the front door, breaking a spinal vertebrae resulting in paralysis. After reviewing the pictures, documents and inspecting the local and state irrigation specifications, it became clear the contractor violated state irrigations standards by not installing pop-up heads adjacent to concrete sidewalks as specified by the agency. The case settled in favor of the plaintiff for over seven figures. Probably not what the Owner expected when he allowed the contractor to install improper sprinkler heads to save some money.

Installation vs. Maintenance Contractor (or who blew it?)

Depending on the nature of the accident, landscape construction negligence and trip and fall cases may involve the construction installation contractor and or the landscape maintenance contractor. Determining fault may require examination of the original contract documents, plans, specifications and Inspection records. Experience maintenance contractors taking over a new project or an older project from another contractor understand the importance of documenting the performance and safety deficiencies during the initial inspection. They can then inform the property management company or homeowner association of these deficiencies at the earliest opportunity. This informed, pro-active form of maintenance forms the basis of a legal defense in the event the documented defect later becomes the basis for a lawsuit.

Another case example: There were shrub heads on fixed risers at the bottom of the slope. Most of the risers were a couple of inches away from the sidewalk, but a couple risers had been tilted back to adjust the angle of the spray head upward due to buildup of slope vegetation over the years. Rather than excavate and properly reset the heads at a correct angle, someone just tilted the heads back, added additional riser height to clear the shrubs. In so doing, a few of the sprinkler heads inadvertently crossed the perpendicular plane of the inside of the adjacent sidewalk. A female jogger and friend are conversing as they jogged past the slope. Suddenly, one of the joggers caught her clothing on a sprinkler head, causing her to trip, fall and break her wrist. Who made the mistake, the original contractor installing shrub head on riser next to a sidewalk or the maintenance contractor who modified the installation resulting in the sprinkler head encroaching the sidewalk public right of way?

Install it Right and Avoid a Fight

A family is at a Sunday outdoor concert, they decide to get some ice cream, but the sidewalk is too crowded, so they follow others and cut across a planter area. Unfortunately, the mother tripped over an irrigation remote control valve box, fell and broke her ankle and suffered other injuries. She experienced months of painful rehabilitation and loss of work, eventually suing the HOA and the maintenance contractor for construction negligence. Upon review of the pictures and documents, the remote control valve box was three inches out of grade. Additionally, specifications provided the top of box no more than 11/2” to 2” higher than surrounding grade and there be a two-inch layer of bark mulch in the planter area. There was no bark mulch and the valve box was too high. Did the installation contractor install the valve box incorrectly? Was the maintenance contractor at fault for not supplementing the required layer of bark mulch? The maintenance contractor and Owner failed to adhere to the contract specifications resulting in a foreseeable accident. Had the contractor installed the valve box properly and or refreshed the layer of bark mulch, the accident and lawsuit could have been avoided.

Protect Your Work In Place

Landscape contractors are usually one of the last contractors or trades used on a construction project. Occasionally. a landscape contractor is scheduled to install work prior to other contractors working on the project. When this occurs, an experienced landscape contractor understands the importance of documenting their completed work, having it tested and inspected by the Owner, architect of General Contractor. Once the work is completed, other trades and the General Contractor and Owner have the responsibility to protect your work in place. If others damage your work, the Owner or General Contractor is responsible for notifying you of the damaged work and providing you the opportunity to repair and retest the work.

The Owner or General Contractor who fails to notify the Landscape Contractor of their work damaged by others runs the risk of construction negligence. I worked for a defendant attorney, his landscape contractor client worked for a General Contractor on a public works project. The General Contactor (GC) requested the Landscape Contractor to install a temporary two-inch on grade mainline during construction. There were no plans or specifications, the superintendent for the GC directed the landscape contractor where and how to install, thereby providing his own specifications. After completion, the work was inspected and approved by the GC and Landscape Contractor. After completing the work, the Landscape Contractor was no longer needed or contacted for over four months.

Three months later, on a labor-day weekend, the on-grade mainline exploded, flooding the project and all of the concrete footing and caisson trenches, requiring over $150,000 in repair costs. The GC sued the landscape contractor for construction negligence. However, during discovery it became apparent the on-grade mainline had been damage on three other occasions by other contractors and been modified by city forces at the request of the General Contractor. The GC never notified the landscape contractor their mainline had been damaged and repaired by others on three occasions, with the final repair causing the mainline to fail. The defendant prevailed in mediation.

Where to Start?

In my days of active landscape contracting, I was so busy running the daily business operations; safety and legal implications were rarely considered. In today’s litigious society, can you afford to make a mistake resulting in a construction negligence lawsuit? Viewing your work from an objective third party perspective can be extremely important and valuable. It is easy to miss mistakes, defects and potential safety hazards during construction and even post construction during inspections. Typically, inspections focus on performance, plant establishment, irrigation coverage, weeds and other landscape related items. Conformance to plan and contract documents may or may not be addressed and rarely do inspections focus on future safety issues and hazards.

Taking pro-active measures to ensure contract conformance and compliance should be viewed as a high priority. Make use of the inspection period to document everything about the project and what was installed. Note the condition and existence of surrounding properties and improvements. Take pictures of everything, your work, the overall site and adjacent conditions that might impact your project. If possible, use a third party consultant to inspect your project from a risk management perspective. Check for surface elevation discrepancies, root encroachment, sprinkler heads, valve boxes and other landscape appurtenances that could cause or be a trip and fall hazard. Inspect for overhead limbs and branches and obstructions that might cause injury or property damage. Observe sight lines to ensure the landscape plant material, meters, and controller enclosure do not block vehicular sight lines at traffic intersections or radial curves.

Lastly, create a mindset for yourself and company toward creating functional, beautiful landscapes that do not create a safety risk or potential hazard to the client, public or property. Create an inspection and documentation procedure aimed at minimizing risk and providing superior customer service. Ultimately, this will benefit you, your company and your clients.