The Benefits of the ANSI A300 Tree Care Standards for Tree Related Lawsuits

Guy + Chainsaw – Tree = Potential Lawsuit vs
ANSI A300 Tree Care Performance Standards

Does he know what he is doing?

Does he know what he is doing?

Background

Tree care professionals contracting for services are frequently members of the Tree Care Industry Association, (TCIA). The International Society of Arboriculture, (ISA), administers various types of arborist certification programs, including certified arborist or certified tree worker climber. The American Society of Consulting Arborist  offers arborists training and testing to become a registered consulting arborist, (RCA). These associations provide industry standards and best management practices for members to adopt into in their own practice.

Note the personal protective clothing, ropes, saddle etc.

Personal protective clothing, ropes, saddle etc.

In California, C-27 landscape contractors and D-49 tree service contractors are licensed by the state, both can legally perform tree care service. Prior to 1991, various industry associations, contractors and practitioners followed their own standards for tree care.

The industry recognized the need for a standardized, scientific approach and agreed to develop an official American National Standard, resulting in the American National Standards Institute (ANSI) A300 Tree Shrub, and Other Woody Plant Management Operations – Standard Practices.

They are voluntary industry consensus standards developed by TCIA and written by the Accredited Standards Committee (ASC) A300, whose mission is to develop consensus performance standards based on current research and sound practices for writing specifications to manage trees, shrubs, and other woody plants.

The ISA and ASCA are members of the ASC and their member practices should conform to the ANSI A300 tree care performance standards. The standards “apply to professionals who provide for, or supervise the management of trees, shrubs, and other woodsy landscape plants. Intended users include businesses, government agencies, property owners, property managers and utilities.” Many municipalities have adopted the ANSI A300 performance standards as part of their tree and landscape maintenance ordinance. The A300 standards are separated into 10 parts based on the tree care practice.

ANSI A300 Performance Standards for Legal Conflict Support

Arboriculture professionals adhere to the ANSI A300 performance standards for developing specifications for tree care. Gardeners, landscapers, designers, and handy men are not certified arborists and rarely have knowledge of industry standards. Even licensed landscape architects, civil engineers, general and landscape contractors may not be familiar with or have knowledge of the A300 standards. Ignorance of the standards is not a legal excuse for violating or ingnoring the standards.

The standards are separated into ten different parts. Through case experience, I have found three of the ANSI A300 standards applicable for plaintiff or defendant tree related legal actions. In conflicts I’ve been involved with, the civil engineer, landscape architects, general contractor, landscape and sub-contractors and even licensed tree care companies were not aware of the A300 standards. In some instances, industry professionals were aware of the standards but failed to adhere to the them.

Without proper planning and management, construction and development projects adjacent to existing trees commonly damage tree roots, trunks and limbs, increasing the risk of a potential tree failure and resultant lawsuit. ANSI A300 (Part 5) Standard Practices (Management of Trees and Shrubs During Site Planning, Site Development, and Construction) is the recognized industry standard for managing trees during construction and is the focus of this discussion.

The A300 Part 5 Performance Standard is intended for use for industry professionals, including all levels of government agencies, private entities including commercial, industrial and residential property owners and managers, engineers, architects and utilities for developing written specifications. The standards apply to any person or entity engaged in the management of trees, shrubs or other woody plants.

ANSI A300 Part 5 standard

ANSI A300 Part 5 standard

Without specifications for tree protection during construction and development, tree injuries occur. Depending on the severity of the injury, the defect may degrade the structural integrity of the tree. Over time, the injury may continue to decay, increasing the risk of failure and resultant damage to people and or property. The reason for the standard is to assess the level of risk and to provide information for risk mitigation.

Civil engineers, landscape architects and other professionals responsible for developing plans and specifications should be aware of the A300 standards. These professionals may not have the tree knowledge expertise, which is why the standard refers professionals to use a certified arborist qualified in tree management during site planning, development and construction.

The standard discusses implementation procedures that should be designed by a professional arborist including:
• Tree management plans in compliance with applicable ordinances and standards.
• Decision making should be based on the knowledge of health and safety of the tree resources present.
• Prime consultant and contractor should involve the arborist in the initial planning phases.
• Arborist site monitoring during construction should be specified to ensure compliance with plan requirement.
• Monitoring specifications should address demolition, grading, vertical construction, walks and pathways, playgrounds, excavations, trenching, drainage systems, and landscape.

For safety, the standard requires only arborists familiar with the standards, practices and hazards of arboriculture shall perform tree management. One of the objectives of the standard it to avoid damaging trees during construction; including damage caused by physical contact, grade changes and soil compaction. To achieve the defined objectives on any project, the arborist should be involved in the management of trees during all five phases of development including:
• Planning
• Design
• Pre-construction
• Construction
• Post-construction

Development and construction projects are complex, requiring planning and coordination among project shareholders. The prime consultant and or contractor should maintain arborist involvement throughout the various phases of the project in conjunction with the arborist developing specifications, resource assessment, conservation plans, monitoring and recommendations. The TCIA website has an exhibit of a Tree management plan flow chart defining what should occur during the development phases, arborist responsibility and development activity.

How the A300 Standard Applies in a Legal Context

The standard applies to all design and planning professionals such as civil engineers and landscape architects. These firms usually work as prime consultants and are responsible for producing the plans and specifications for development projects. They are responsible for knowing and adhering to the A300 performance standards. The same applies to prime contractors and their sub-contractors, and other project stakeholders.

Failing adherence to the A300 standards renders prime consultant(s), general and sub-consultants potentially liable if a tree related accident occurs. I used the A300 standard in a case involving a tree limb that fell from a tree onto an adjacent tot-lot.

A city decided to build a park within a former old growth forest. A civil engineer and landscape architect developed plans and specifications, including a grading plan with notes and a detail for tree protection. The general contractor, grading, and recreation equipment sub-contractors constructed the park. The design included a tot-lot with children play equipment built where trees were removed, with old, construction damaged trees remaining left intact at the edge of the tot-lot.

A few days after the park opened, a tree limb dropped onto the tot-lot, striking and killing a young child seated on a piece of play equipment. The parents sued the city, the design consultants and all the contractors because the defendants did not observe the city tree ordinance. The city ordinance adopted the A300 tree care standards as part of their tree ordinance, which the defendants ignored, arguing the standard did not apply to their trade(s). After extensive deposition testimony, using the standards in support of the Plaintiffs (parents of the deceased child), all the defendants settled rather than proceeding with a trial.

In another case, a property owner agreed to allow a guy to prune a tree. The guy claimed to have forestry experience. He had a rope tied around a limb that he cut just as a neighbor walked out of their house. The limb dropped, rebounded at the end of the rope causing it to swing and strike the neighbor in the face. In the resulting lawsuit, the A300 standards were used to support the plaintiff complaint with a resultant settlement from the insurer.

The A300 standards apply to tree care companies, certified and consulting arborists. Different standards may apply depending on the case. For example, A300 (Part 9), Tree Risk Assessment A. Tree Failure, provides performance standards for tree risk assessment and guidelines for establishing written specification and best management practices, (BMP).

As a certified and registered consulting arborist, tree risk assessment inspections and reports are consulting services I provide, I’ve incorporated this and other standards into my practice.  Tree care contractors might find other standards, such A300 (Part 1) Pruning, Part 5 (previously discussed) and Part 9 particularly applicable to their business.

In conclusion, the ANSI A300 Tree, Shrub, and Other Woody Plant Management Performance Standards are a powerful tool that may benefit a plaintiff or defendant involved in a tree related accident. The standards are broad reaching in scope and application to a wide variety of construction and development professionals. Attorneys and insures should consider the potential application of A300 performance standards in tree related cases.

Did You Take the Right Photo?

I receive inquiries about tree failures from attorneys, insurers, HOA’s, commercial and residential property owners.  Unfortunately, many inquiries concern a failure that already occurred, resulting in personal injury, property damage or both.  Potential legal clients want to know the cause of the failure and whether the Owner or contractor satisfied the standard of care.

Forensic investigation to determine the cause of a tree failure may be difficult.  Whether a limb or whole tree failure, the tree is usually removed and the accident site cleaned in a short period of time.  Without actual evidence of the failed part to examine, determining the cause of the failure is impossible.  Or is it?

If the Client took effective photographs of the tree failure at the time of the accident or shortly thereafter, a skilled arborist might be able to examine the failure for clues that could determine it’s cause.  Unfortunately, most people take pictures that have limited or no value for forensic analysis.

Whole tree failure due to root disease. (Photo by JoeLaForest)

Failure due to root disease. (Photo by JoeLaForest)

There are several types of failures to distinguish.

Root failures, usually due to a root rotting fungus, resulting in loss of anchorage, entire tree failure may occur, particularly during inclement weather. Blackened broken off roots may protrude out of grade.

 

Soil failure, the entire root ball rotates or heaves out of grade, typically occurs during wet, windy weather. In a soil failure, root protrusion from the soil mass is limited.

Soil failure resulted in tree loss.

Soil failure resulted in tree loss.

 

Collar and basal stem injuries may result in the tree snapping off at the base.  Collar injuries may occur from mechanical sources, such as string trimmers, mowers, or edgers.  Trees grown in small, confined planters, such as cutouts in sidewalk may develop girdling roots resulting in poor root development and anchorage.

Restricted root zone results in collar failures

Restricted root zone results in collar failures

Within five years, tree trunk diameter may outgrow the opening within a tree grate.  Construction activities that raise or lower the grade may also damage the root collar and surrounding surface roots.

Trunk failures may occur due to co-dominant trunks, two trunks of equal size sharing the same attachment.  Co-dominant trunks may develop included bark, which weakens the trunk attachment, resulting in the trunk cracking or completing splitting apart along the weakened plane of included bark.

Co-dominant stems crack. (by Cherokee Tree Care).

Co-dominant stems crack. (by Cherokee Tree Care).

Limb failures are perhaps the most common type of failure. Limbs may drop for a number of reasons.  Typically, limbs fail due to weak attachments to the other larger limbs or the trunk.  Multiple limbs attached at the same point, poor architecture, excess load, cracks, and cankers inevitably start to decay.  As the decay decreases the structural stability of the attachment, the limb is susceptible to breakage or detachment from the tree, typically during inclement weather events.

Weak limb attachments. (by Randy Cyr)

Weak limb attachments. (by Randy Cyr)

However, sudden and summer limb drop are syndromes whereby healthy limb failure occurs during calm weather, usually May-October.  The syndrome is still not fully understood or how to manage.

Although not a tree failure, surface roots may be responsible for damaging infrastructure, particularly lifting and cracking concrete sidewalks and patios, a major source of trip, slip and fall accidents.

Roots lifted sidewalk

Roots lifted sidewalk

 

Sidewalk replacement due to root damage

Sidewalk replacement due to root damage

As roots age, they increase in diameter, just like a branch or trunk.  As roots grow under a sidewalk age, they increase in diameter, slowing lifting sidewalk panels over time.

Trees typically fail suddenly,with little warning.  The resulting impact may cause extraordinary property damage and possible personal injury or death.  When an event occurs, emergency workers, media and the public are focused on the event, saving life or restoring traffic, not on taking forensic photographs of the accident.

By SD Union Tribune

Emergency crews at work. (by SD Union Tribune)

Forensic reconstruction of a tree failure relies upon factual evidence.  If the failed tree or limb has been disposed, it is impossible to assess why the failure occurred unless well taken photographs exist.  If a tree limb fell due to a cavity or defect, photographs showing the limb lying on the ground are of limited value.

Forensic photographs should depict the condition of the failed limb or whole tree.  While a photo of the limb lying on the ground adds some context, it does not depict the cause of the failure.

Limb failed due to an old decaying canker.

Limb failed due to an old decaying canker.

Photographs should show the end of limb that broke off the tree and the scar or injury left on the tree trunk. Sometimes, it takes a long time for a limb canker to decay. Over time, the decay weakens the attachment of the limb which eventually fails.  A photo showing the broken end of the limb and the damaged trunk area could prove invaluable.

Considerations for effective forensic tree failure photographs:

  • Timing:
    • Take as soon as possible from date of the accident.
    • Take photographs of changes in condition, ie:  the tree stump remained one day but was removed a week later.
    • If case extends over time, take photographs over the time period, this may help establish original tree wounds and healing rate.
    • If using a digital device, turn on the date stamp for photographs.
  • Include Photographs of The Site:
    • Establish the overall accident perspective with wide angle photographs depicting the entire site, street, park etc.
    • Overhead or underground utilities, adjacent structures, construction activity.
    • The presence of irrigation system.
    • Damp, wet, moist, standing water conditions.
    • Planter size, confined by curb, gutter, sidewalks, asphalt paving, driveways or other obstructions.
    • Grade condition, accumulation of tree litter, mulch or compost placed around tree trunk and roots.
    • Add a tape measure for scale
  • Include Photographs of the Subject Tree or Part:
    • The entire tree or limb from one end to the other.
    • Surrounding trees of same species for comparison.
    • The broken end of the limb
    • The  torn, damaged area on the trunk the limb detached from.
    • The root condition.
    • The planter or turf area the tree was growing within.
    • The soil conditions.
    • Add tape measurements for scale and dimensions.

Tree failures occur infrequently, but when a failure occurs, consequences may be severe. The first reaction of emergency responders and the general public is to assist in an emergency, not document the cause.  Since most tree failures are cleaned up and removed within a short period of time after the accident, valuable forensic evidence may be lost.

Photographs shown in this blog show the location of the failure, not the end result of the failure.  Effective forensic photography should depict the failed tree component(s), including trunk scars, injuries, failed or torn limb ends.  Tape measurements included in the photograph may prove very helpful.

When the tree or limb has been cut up and hauled to the landfill, the only effective evidence might be photographs taken at the time of the accident that depict defects that might establish the cause of a failure.  An arborists requires evidence and facts to assess why a tree failed.  Well taken photographs are often the most effective forensic tool available for analysis.  So, take the right picture!

Worried About Your Tree?

We have gone from record drought to record amounts of snow and rain throughout California.  While the winter storms have wreaked havoc on our infra-structure (Oroville dam spillway, flooding in San Jose, etc, they have been a blessing for drought starved trees throughout the west.  Years of inadequate rainfall reduced soil moisture leading to an incredible dieback of trees numbering over tens of millions within the state.

The urban environment creates stresses not normally encountered in the wild.  In cities and suburbs, trees contend with confined planter area, compacted soils, improper or inadequate irrigation, poor maintenance practices, improper pruning, shading by homes or buildings.   Stresses created by the urban environment reduce tree life expectancy, sometimes by as much as 50%.

During the drought, I have seen an increase in tree failure, whether a limb drop or whole tree failure.  In most instances, crown, limbs, branch and twig dieback were the obvious symptoms of the drought.  Many times, clients mistakenly thought the dieback was caused by disease or insect, however root dieback from minimal soil moisture was the cause of crown dieback.

Now, with the heavy rainfall and wind, tree failure due to saturated soils are on the increase.  Trees remain upright due to their root system.  Structural and buttress roots grow outward from the trunk at the (root crown), out to the edge of the crown (known as the dripline).  At the dripline, the structural roots are 1-2″ in diameter.  They continue to grow outward, branching into the small, fine feeder roots that absorb moisture and nutrients.  Depending on local conditions, tree roots may extend 1.5 times the tree crown diameter.  Based on San Diego soil conditions, most roots grow within the upper three feet, typically 80% of the roots are within the top 18-24″ of the soil.

Roots in dry soil are held in place by friction.  However, when rain saturates the ground, it acts as a lubricant, lessening the soil friction holding roots in place.  When wind combines with excess weight from rain or snow, the energy is transmitted down the trunk to the roots.  Soil root friction reduced by saturation causes roots to loose anchorage, resulting in a failure.  When roots fail to support the tree, it is assessed as a root failure.  When the entire root ball rotates up from the soil, it is a soil failure.

Homeowners with large trees in close proximity to their property should examine their trees for any change in condition as a warning sign of a potential problem.  Changes to be aware of include:

  • Is the tree leaning?
  • Are there soil cracks at the base of the tree?
  • Is the soil lifting, tilting or rippling at the tree base?
  • Are there dead limbs or branches in the crown?
  • Is there a progression of twig, branch and limb dieback?
  • Did the tree drop it’s leaves abnormally early?
  • Did the tree not leaf out as in the past?
  • Any obvious open cavities, cracks or splits?
  • Any animals or insects nesting within a hollow, cavity or crack?
  • Any fluids, abnormal sap flow or other discharges from the tree?
  • Has irrigation been reduced or eliminated to the tree?
  • Has there been construction activity near the tree?
  • Have the roots been disturbed by any nearby utility or sidewalk work?
  • Is the tree sitting in water, is there proper drainage?
  • Has there been a change in grade near the tree?

If you can say yes to any of the above, your tree may have acquired defects that increase the risk of failure.  The increased risk of failure may result in property damage or personal injury to your family, friends, or any pedestrian near the tree.  A tree with a history of previous failures possesses an increased risk of failing.  Trees may not present any obvious signs or symptoms of a defect.  Unseen decay may exist within a limb or trunk, or as a root rot.

Whether commercial or residential property, if you are concerned about the health and safety of your trees, you should contact an arborist certified by the International Society of Arboriculture, (ISA).  Once certified, the ISA allows arborists to enroll in specialized training to earn the credential of a Tree Risk Assessor Qualified.  While anyone may attempt to assess the health and structural integrity of a tree, certified arborists who are qualified in tree risk assessment represent the industry standard and best management practice for tree risk assessment.

Tree risk assessment is the current best management practice to determine tree risk of failure associated with defects.  The assessment utilizes a level two basic visual assessment and a two page ISA format for the assessment protocol.  The assessor may determine more advanced assessment techniques are required, however usually a basic visual assessment will suffice.

If you have noticed a change in the health or condition of your tree, take proactive measures before a catastrophic accident, call a certified arborist knowledgeable in tree risk assessment.

Click here to read an article published in the LA Times Risk Assessment article.

Trees Damaging Los Angeles Infrastructure, Who Is Responsible for Liability and Repairs?

In May and June of 2015, The Los Angeles Times published articles addressing the problem of crumbling sidewalk infrastructure within the City of Los Angeles. The articles focused on the challenges pedestrians face in this car-dominated city. After years of mounting complaints and lawsuits caused by defective, dangerous sidewalks, city officials are finally beginning to address the problems caused by trees that were planted within city parkways, medians and right of ways.

Roots have damaged the sidewalk creating a trip and fall hazard

Roots have damaged the sidewalk creating a trip and fall hazard

After decades of deferred maintenance, the City Council, the Mayor, and public work officials are finally turning their attention toward addressing the problem, and trying to figure out how to juggle spending requirements resulting from legal settlements and sort out who is responsible for future sidewalk maintenance, as well as liability for future injuries caused by damaged sidewalks.

The first question, who is responsible for sidewalk repair and replacement caused by trees growing within city parkways and right of ways? California state law placed the burden of sidewalk repairs on adjacent property owners. A majority of California cities adhere to the state policy, however not the City of Los Angeles, which forty years ago opted for a policy that made the City responsible for repairing sidewalks damaged by tree roots in city parkways. Back in the 1970’s, when federal funding was available for the work, Los Angeles opted to pay for tree-damaged sidewalks. When the federal funding was depleted, voters declined to support tax increases for the repair work, leading to the current massive backlog of damaged sidewalks.

Instead of removing invasive, surface rooting tree species and replacing damaged sidewalks, the city embarked on a less expensive program of temporary asphalt patches in an attempt to smooth over displaced, uneven sidewalks. The problems continue to mount, with over 19,000 sidewalk complaints within the past five years alone. Over 40% of the complaints have been ignored, with no repairs having been made, mainly due to inspections never being made or the sidewalks so severely damaged they require complete rebuilding.

The City is now proposing a policy to address the situation. Under the proposed policy, neighborhood sidewalks damaged by city parkway trees would be replaced at the city’s expense. However, after repairs are completed, responsibility for repair, maintenance and liability would be shifted upon the adjacent property owner.

The proposal has received mixed comments from residential and commercial property owners. Businesses already pay taxes they assume local government should be using for infrastructure repairs. Additionally, requiring businesses to pay for repairs would harm retailers, especially in districts lined with problematics trees. Many commercial property owners would be forced to pass on the expense to the small business owners that rent the property.

Ficus roots creating a sidewalk hazard

Ficus roots creating a sidewalk hazard

Under the “fix and release” program, repairs would be made by the city, and then future responsibility for the sidewalks transferred to the homeowner. Some homeowners feel this would be an equitable solution to the current problem, other disagree, stating they would be saddled with big bills down the road, particularly if the city does not fix the “root” cause of the problem, that being tree roots or leaking utilities.

The city must grapple with both sides of a delicate issue, trying to preserve the benefits of large, picturesque trees providing neighborhood character while having to remove the same trees whose invasive roots have damaged infrastructure and would continue to do so if left in place. To begin the process, the city acknowledged they do not really know how extensive the problem is. The city has no existing tree inventory of the tree and sidewalk condition. Without this information, it would be difficult for the city to measure progress as they attempt to implement any new sidewalk management policy.

Certified and registered consulting arborists consult with Southern California municipalities and private property owners involved in trip and fall litigation caused by tree root lifted and damaged sidewalks. Typically lifted and damaged sidewalks caused by tree roots are due to inappropriate tree selection. Species such as Sycamore, Ficus, Eucalyptus and Ash trees planted decades ago in restricted parkway planters were most often associated with damaged infrastructure.

Sidewalk repair or replacement without addressing the existing tree species ignores the problem. Passing on responsibility for future repairs and liability to adjacent property owners would be an unjust situation for taxpayers. Large, surface rooting, invasive species should be closely examined for mitigation in conjunction with infrastructure replacement. Perhaps root pruning and root barriers might be an appropriate remediation that would protect future infrastructure while retaining large pre-existing species.

However, many species planted decades ago were and will always be inappropriate for confined parkways. Root pruning a large Ficus or Sycamore could easily de-stabilize the tree, resulting in a catastrophic failure. Who would be liable for a tree failure and resultant property damage, or worse, personal injury or death? Citizens might have to accept they cannot have the best of both worlds, where large, invasive trees are retained for neighborhood character, sidewalks are repaired and the city remains responsible.

Over the decades, many newer street tree species have been developed that provide desirable growth characteristics while minimizing damaging invasive root systems and towering canopies that conflict with traffic and overhead utilities. Reasonable compromises can and should be made toward replacing older, inappropriate tree species with newer species that will provide community benefits while minimizing maintenance costs and damaged infrastructure.

Hopefully, the City of Los Angeles and other municipalities facing this problem elect to use certified and registered consulting arborist and horticulturists as they consider how to address their urban forest and infrastructure issues.

To read the full Los Angeles Times Article, click the link:

L.A. Considers Shifting Responsibility to Property Owners

 

What is an RCA?

When I tell people I’m a consulting arborist they often ask what is that? Everyone is familiar with tree care companies, but not so much what the role of a consulting arborist. The common conception is when there is a tree problem, call up a tree contractor and have them do the work.

Yet, there are many tree problems that require expertise beyond a tree care company. When a tree has a change in condition or conflicts with infrastructure, a consulting arborist is required to assess the situation and make recommendations.

Consulting arborists have one or more certifications.  The primary designation is a certified arborist.  This designation is administered through the International Society of Arboriculture (ISA).  The second and more difficult designation to obtain is that of Registered Consulting Arborist (RCA), administered through the American Society of Consulting Arborists (ASCA). Consulting arborists with the RCA designation are the preeminent authorities on tree related matters.

To receive the RCA designation, an individual must already be a certified arborist.  Once they meet the experience and education requirements, an applicant must enroll in the Consulting Academy.  This rigorous training focuses on technical and report writing. Applicants who receive their RCA designation are trained to produce the highest quality written reports and work product, a terrific benefit for attorneys, insurers and professional consultants.

To learn more about registered consulting arborists, please click on the link below.

What is an RCA

Landscape and Tree Contractors, Minimize Lawsuits, Understand Your Duty of Care!

If you are a landscape or tree care contractor, you should be aware of the potential liability you face by an unhappy client. This awareness begins when you understand your “duty of care” as a landscape or tree care professional.

What is “duty of care”? It is a very important legal concept that simply stated means a person or organization has the legal obligation to avoid acts or omissions that could harm others. The duty of care extends to your actions or lack of action that would cause harm to your client or their property, perhaps even extending to adjacent properties and utilities.

Licensed contractors should understand their client hired them for their expertise and professionalism. The client is reliant upon the contractor to provide a product and service that conforms to industry standards. It is incumbent upon the contractor to satisfy all contractual obligations and satisfy the industry standard of care, or face a possible lawsuit.

If you are a landscape, maintenance or tree contractor interested in learning how to minimize you legal exposure and reduce your liability, please read the full article at:

Reduce Liability by Understanding Your Duty of Care