Who is Better Qualified to Opine on Root Damage, Civil Engineer or Certified Arborist?

I was retained by a defendant attorney to determine whether her client’s tree was responsible for lifting the adjacent civil sidewalk that resulted in a plaintiff trip and fall lawsuit.  Based on the photographs and tree species, White mulberry (Morus alba), I was fairly certain her client’s tree was responsible for the sidewalk damage.

The attorney retained me and requested a site inspection and tree root assessment.  I trenched adjacent to the sidewalk and within a short time, encountered a three-inch diameter root growing under the sidewalk.  Further excavation revealed a network of two to four-inch diameter roots that had grown under the sidewalk, lifting a sidewalk panel, creating a hazardous condition resulting in a trip and fall accident.

I informed the attorney that root encroachment from her client’s tree resulted in the sidewalk damage, she said her civil engineer expert claimed it impossible for a tree root to lift a concrete sidewalk.  I questioned the engineers knowledge and experience with trees, was the civil engineer a certified arborist or horticulturist?

Although the answer was no, she felt his qualification as a civil engineer was superior to my qualifications as a certified arborist, tree risk assessor qualified, registered consulting arborist and a college educated horticulturist.  Her dilemma was having two experts who disagreed and she requested I alter my opinion.

I told the attorney altering my opinion to suit her needs was unethical, and I removed myself from the case.

The common myth is trees have tap roots that grow straight down into the soil.  While this may occur in very deep, loam soils, the reality is most containerized nursery grown trees lose their tap root in the container.  Once planted in our poor Southern California soils, when the tap root encounters physical soil obstructions, such as rock, clay or hardpan, the tap root divides and grows multiple roots around the obstacle, forming a fibrous root system.  Tap root grows into fibrous root system.

Trees require a spreading root system to maintain structural stability.  Trees dissipate energy generated during a storm or wind event by transmitting leaf, limb and trunk movement down to the roots.  A spreading root system anchors the tree movement and dissipates the energy far more effectively than a single tap root system.

Most tree roots grow within the top 24-inches of the soil horizon. Roots in top 24″ of soil.  Over time, structural tree roots (2-inch diameter and greater) growing within a shallow soil adjacent to sidewalks, footings, foundations, walls or othersub-surface infrastructure may cause damage.

Just as a twig grows into a branch, and then a limb, roots increase in length and circumference.  Irrigation water, sewer or water service leaks increase subsoil moisture beneath sidewalks or garage slabs, creating a perfect environment for root growth.

Cracked garage slab

As the root circumference increased, it exerts pressure on the concrete slab or footing above the root.  Depending on the species, root diameter might increase 1/8-1/4” annually.

Within five to eight years, a small feeder root may grow to one-inch in diameter or greater.

 

Ficus root cracked the garage slab

The root growth may be compared to the action of a hydraulic jack, as the circumference increases, the upward pressure on the sidewalk or slab may crack and or eventually lift.  Concrete lifting may often occur at an expansion joint between concrete panels

Sidewalk lifted at expansion joint

 

 

 

 

Root network beneath sidewalk.

Roots seek out soil moisture, they can and will grow under walls, footings and garage slabs.  Roots are opportunistic, leaky plumbing, old cast iron sewer lateral or water services contribute to the soil moisture needed for roots to flourish. 

 

 

 

Sewer lateral root damage

Roots may infiltrate pvc, abs and cast-iron pipe through even the smallest of cracks or holes. 

Once inside, the roots expand in size and quantity, eventually completely clogging the utility.

If the tree crown has grown over a sidewalk or adjacent structure, it is a reasonable assumption structural roots (two-inch diameter and greater) have grown under the sidewalk, slab or footing.

Root growing under house footing

Planter areas confined by concrete pose one of the greatest risks for root damage.  City sidewalks often incorporate small, square planters within the sidewalk easement.

Roots lifting water meter and sidewalks

 

Confined planters quickly fill with structural roots, as well as damaging girdling root.  As the tree crown grows, so to do water absorbing feeder roots.  Over time, root mass and size increases, structural roots may begin to grow beneath concrete improvement while seeking out moisture.

Leaking water meter, high soil moisture, confined growing space.

The tree pictured above and to the right had a leaky water meter adjacent to the small sidewalk planter.  The leaky service provided idea soil moisture conditions for the roots to lift the water meter box, adjacent sidewalks and crack the curb and gutter.

Preventative measures to minimize root encroachment include a variety of root barrier methods.  All root barrier systems work best when the tree is installed.  Once roots have enlarged and matured, barrier mitigation is not successful.

In summary, our Southern California poor, shallow soils do not support deep tree tap root systems.  Most trees grow fibrous spreading root systems.  Structural roots emanating from the root collar extend to the edge of the tree crown, (drip line).  Most structural roots growing beneath sidewalks range from two to four inches in diameter, lifting sidewalk panels on average one-two inches. Trees growing in confined planters or adjacent to concrete, utilities or foundations may develop structural roots capable of lifting, cracking or damaging adjacent improvements.

Attorneys should select an expert based on the case criteria, not simply a title, license or certificate. Choose an expert most appropriate to address the cause of the problem and develop opinions based on sound, industry practices.

 

 

 

 

 

Finally, A Turf Block Driveway With Thriving Turf!

Rarely have I seen a successful turf block driveway.  Turf block, turf stone, turf pavers are systems installed as living turf driveway alternatives.  The material provides structural support via plastic or concrete cells that are filled with a soil media for turf installation.  The block is designed to support vehicular traffic on driveways while providing a green alternative to concrete or asphalt driveways.

Turf blocks have been used for decades, but rarely have I seen thriving  turf grass within the block.  Not because of the product, but usually due to turf establishment and failure issues.  Due to reduced soil root area, soil compaction, irrigation infiltration and damaged soil structure result in poor turf establishment.  Soil preparation, drainage and proper irrigation coverage and operation are required to grow turf inside of a turf block system.

Lastly, using vigorous, warm season turf grasses that spread by horizontal solons, rhizomes, and rooting improves the successful establishment of turf grass, such as the Tiff hybrid Bermuda grasses developed for sports fields. Cool season turfs including rye, bluegrass and turf type fescues are clumping turfs that do not spread horizontally, thereby limiting establishment and healthy growth.  Cool season grasses are more susceptible to leaf and soil borne diseases, are easily stressed during hot summer months, nor are they tolerant of vehicular and pedestrian traffic and compaction conditions.  

Tiff hybrid Bermuda is well established within the turf block

Trip, Slip and Fall Hazard: Hidden Depressions in Grade

Successful landscapes require:

  • Proper grading, drainage and amended soil.
  • An automatic irrigation system achieving 100% head to head coverage.
  • Properly installed, high quality plant material.

Each of these functions may require a specific type component, installed at a specific height or location to reduce the potential of creating a site hazard that may result in an accident.  In commercial applications, landscape plans usually include details and specifications dictating type of product and how it should be installed.

Many common landscape products may be improperly installed including:

  • Pop up heads may be incorrectly set to grade against a sidewalk.
  • Valve or drainage boxes set too high or low relative to finish grade.
  • Shrub head installed on a riser adjacent to concrete improvement.
  • Hidden, obscured depressions in grade due to substandard compaction, settlement and subsidence.

    Drainage box set too low.

Improper product selection or substandard installation practices may appear obvious.  A pop up sprinkler head set above the top of  adjacent concrete sidewalk creates a trip hazard.  A drainage structure set well below the turf grade creates a trip slip and fall hazard.  Selecting and installing a spray head on a rigid riser next to a pedestrian sidewalk is a sub-standard industry practice that creates a trip and fall hazard.

Spray head on a riser next to a sidewalk creates a trip hazard.

Not all landscape hazards are visible.  Turf areas may have grade depressions or holes that are hidden by overgrown turf grass.  Depending on the cause and time period, turf grass may completely hide the depth, location and size of the depression or hole, creating a hidden hazard.

A depression, rut or hole may result from several factors.  Repeated mowing on saturated turf may  create ruts.  Overwatering may cause irrigation or utility trench settlement.  A dead tree removed from a turf area may result in a future depression if the grade is not properly backfilled and compacted.

A seven inch deep hole hidden by turf grass.

Bermuda grass is a fast horizontal spreading turf-grass used in parks and recreation facilities throughout the country.  Unless regularly aerated and de-thatched, Bermuda grass in known to grow a  thick layer of thatch.  Over time, the thatch layer can increase the turf grade several inches above adjacent sidewalk and curbs.

The backfill in utility trenches installed across pre-existing turf may settle, creating a depression in the sub-grade.  The photo depicts the edge of a trench cut across an asphalt driveway, across a turf area.  The trench backfill eventually settled, creating a trench sub-grade depression hidden by the Bermuda grass.

Thatch, hidden depression and sanded turf.

The depression resulted in a trip and fall accident.  After the accident, several hidden turf depressions were “sanded” to fill  depressions to proper grade.

Not all landscape hazards are open and obvious.  Even a perfectly installed landscape may develop hazardous conditions if not regularly inspected and maintained.

Irrigation systems should be monitored, inspected, tested and adjusted monthly.  Turf should be trimmed around utility boxes and vaults regularly, aerated and de-thatched annually to maintain optimum performance and minimize grade changes.  Drainage structures should be grade adjusted, repaired or replaced when damaged.  Valve, electrical and junction boxes should be monitored for grade changes and adjusted as required.  Bark mulch thickness should be monitored and supplemented annually to maintain proper coverage and grade.

In summary, a properly installed landscape is composed of several systems and components that require regular ongoing maintenance for optimum performance, efficiency and safety.  Pro-active landscape maintenance may reduce potential hazards, resultant accidents and lawsuits.  These actions demonstrates an Owner’s recognition of protecting the health and safety of the public, pedestrians, friends and family who may visit and use the site and may prove useful in a legal action.

Arborist Online Learning Opportunities in the Covid Era

In a recent blog, I discussed using online media for a site online site inspection involving a Torrey pine tree root conflict with adjacent asphalt paving.  That marked the first time I used an online media tool rather than being physically present at the site.  My client and I used Facetime to conduct the real time inspection.

As the restrictions ease, I believe the use of online media such as Zoom, Hangouts, Facetime etc will increase.  I have already presented this concept to a legal client in Northern California concerning an irrigation inspection.  Do I really need to fly from San Diego to San Francisco, rent a car, drive to the site, observe irrigation defects, then reverse the process returning home or, can I watch the inspection over the web?  The level of scrutiny required depends on the individual case.

A slide from Dr. Smiley’s presentation

Like so many other industries, the tree industry is rapidly adapting to the new Covid – 19 reality.  Today, I attended an online Zoom seminar titled Sidewalks, Urban Plazas and Tree Roots.  This seminar was presented through the ISA Southern Extension.  I believe it was originally going to be part of a “normal” ISA Southern Association Annual meeting that was cancelled due to Covid.

The online presentation occurred through Zoom with over 1000 arborists throughout the U.S. and other countries attending. The topic concerned tree roots damaging sidewalks, presented by Dr. Thomas Smiley.  Once a few technical glitches were adjusted, the presentation was almost identical to what I had experienced attending many seminars.

The slides presented alongside the audio streaming from Dr. Smiley was easy to view.  I became immersed in the content and found myself taking pics of some of the slides.  The topic provided test data results using different techniques designed to reduce root intrusion beneath sidewalks.

Incorporating root growth inhibitor practices

 

The presentation lasted an hour, same amount of time I’m accustomed to when attending a seminar.  Although I already knew a great deal about the topic, I still came away with new information for use in my practice, including a great specification detail incorporating multiple root growth inhibitor practices that may reduce sidewalk damage due to roots.

In the past month, I’ve been able to continue my consulting practice from my home office.  I’ll continue to utilize more online media tools, whether for learning, conducting site inspection work, and client meetings.  I believe these new opportunities are one of the (few) beneficial results from the Covid-19 virus.

I recently provided a client with a proposal to develop landscape maintenance specifications for commercial properties located in several different climatic regions.  The proposal did not include any site visits.  All data collection would occur online through various means.  Using online data collection versus conducting multiple site visits saved the client thousands of dollars.

I’m looking forward to these new opportunities utilizing online media sources as potential replacement for physical presence.  Hopefully it will prove an efficient, effective, cost saving technique without sacrificing product accuracy.

 

 

 

Online Site Inspections with Corona Virus: A New Paradigm?

The corona virus and resulting stay at home order has prevented me from scheduling or attending site inspections.  I require site inspection for most forms of consulting work, including as a consulting arborist or expert witness.

  • Tree failures, health and risk assessment
  • Tree inventories
  • Tree and nursery appraisals
  • Tree roots and infrastructure damage.
  • Landscape appurtenances creating trip and fall hazard.
  • Obscured landscape hazards, grade changes
  • Irrigation operation, maintenance issues

A client wanted me to attend and observe asphalt paving taking place adjacent to an 80 year old Torrey Pine.  I had previously consulted on preserving this tree during construction on an adjacent property.  The client was repaving his driveway on the alley, the pine is right on the edge of the paving.

Due to California stay at home orders, I informed the client I could not be present to observe the paving to make recommendations, so we used the Facetime app and did an online site observation whereby I watched in real time as the work was being performed.  I was able to give the client recommendations in real time.

Moistened towel protect surface roots

He was concerned about root damage, and rightly so.  Some of large buttress roots would be impacted by the paving.  Instead of cutting, I recommended covering the roots with wet towels, fabric etc, then placing moistened sand base, then pave over the roots.

Moistened sand placed over protected roots

As terrible as it is, the corona virus has created many new ways for industries to re-invent how they do their business.  This was the first time I have attempted on online site inspection and it worked!  This may not be applicable for the types of investigations I perform, but there is a great new tool I can use for certain types of investigations during stay at home and even beyond.

Asphalt paving over protected roots

 

The financial savings for the client are obvious.  Travel costs for me to travel to Los Angeles, Orange or Inland Empire typically range from $500 to $1000 or more if hotel stay is required.

Not all inspections can be performed remotely.  Forensic investigations that require measurements, excavations, sampling, testing etc may not be applicable.

Since this is new to me, it will take some real time client cases for me to determine how and when I can utilize this new tool.

RDCS LLC Hired as Consulting Arborist by PCL Construction for UCSD Triton Pavilion Project

PCL Construction, is the general contractor managing the Triton Pavilion project at UC San Diego.  PCL Triton Pavilion.  The Triton Pavilion project includes developing a new, large student center and be a future major stop for the San Diego trolley Blue Line.  The trolley Blue line expansion to be completed in 2021 will connect downtown San Diego to University City. Union Tribune Article

To determine how to manage existing campus trees in conflict with future construction, PCL hired Rappoport Development Consulting Services LLC as a sub-consultant providing arboricultural consulting services.  Mr. Jeremy Rappoport, President of RDCS, will assess and tag all the project trees and develop a tree inventory.  The inventory will identify the tree, trunk diameter, crown height,  quantity, structure and health condition.  These metrics will assist in determining tree retention, protection, and relocation.

RDCS founder Jeremy Rappoport is an ISA certified arborist, tree risk assessor qualified, ASCA Registered Consulting Arborist (RCS #564), C-27 California Landscape Contractor #436000 and a professional horticulturist.  RDCS LLC provides arboriculture, landscape, horticulture and land development consulting services for civil engineers, landscape architects, prime contractors, municipalities, HOA’s, commercial and residential property owners and  expert witness litigation and support services for plaintiff and defendant attorneys and insurers.

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.

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

RDCS LLC Hired for City of San Diego North Torrey Pines Roadway and Median Enhancement Project

Rappoport Development Consulting Services LLC has been hired by the City of San Diego to provide certified arborist consulting services for the North Torrey Pines Road Median and Street Enhancement project.  Estrada Land Planning Inc., the project landscape architectural firm, has sub-contracted with RDCS LLC to implement tree protection plans, including tree monitoring, and best management practices.   Tree protection plans and best management practices (BMP’s), are designed to minimize construction impacts to the existing median and parkway street trees.

The project encompasses approximately 1.5 miles of construction work along North Torrey Pines Road, adjacent to the Torrey Pines Golf Course.  The scope includes street improvements (curb, gutter, guardrail, sidewalk, drainage) as well as landscape and irrigation within the medians and parkways. Palm Engineering is the General Contractor for the project.

Eucs in median

Eucalyptus line the median planter of N.Torrey Pines Rd.

Within the project boundaries, north and southbound traffic is separated by a median, varying in width from approximately 3 to 20-feet.  The current median landscape consists of moderate to large size Eucalyptus trees with no other understory planting.  Previously, RDCS LLC was hired as a certified arborist sub-consultant by Estrada Land Planning to develop a tree inventory for a sensitive portion of the project.

The inventory included tree health and when needed, tree risk assessment to determine if certain tree defects created hazardous safety conditions warranting removal.

Trunk cavity in Eucalyptus

Trunk cavity in Eucalyptus

The trees inventoried were primarily Eucalyptus cladocalyx, commonly known as the sugar gum.  Smaller caliper trees ranged in age from 20 to 30 years old, while larger trees possibly up to 100 years old. The existing Eucalyptus median trees have grown and acclimated to the site conditions, under non-irrigated conditions.  Preparing the trees to survive through the construction process is extremely important.  The three parts of the tree requiring protection include the tree crown, tree trunk and tree roots.

 

Jeremy Rappoport, President of RDCS stated,

Aerial crown pruning to clean out deadwood

Aerial crown pruning to clean out deadwood

“We knew we would encounter tree roots throughout the median, our goal was to minimize root conflicts and environmental stresses to the trees.”  Therefore, tree protection best management practices included aerial canopy pruning to remove deadwood from each tree crown, installing construction fencing to protect tree trunks and hand trenching and root pruning to minimize roots conflicting with street improvements.

The concept of root pruning is to trench and locate conflicting roots and hand cut them rather than having a piece of grading equipment ripe or tear the root out of the ground.  Hand trenching and root pruning reduces the shock and destruction of small absorbing root hairs caused when heavy equipment rips, tears or cuts roots.   Properly implemented, root pruning is an effective arboricultural technique to reduce construction impacts to tree root systems.

Best management practices also include reducing soil compaction by minimizing construction traffic and not allowing staging or parking equipment underneath tree canopies.  Although the site is not irrigated, recommendations for weekly construction watering were implemented to help the trees cope with the stresses caused by the construction work.

RDCS will provide consulting services whenever construction work endangers the existing trees.    Rappoport stated “We were told to be on call for monitoring services during certain phases of the street improvements and trenching.  We have completed the first phase of canopy pruning and expect to provide root pruning on certain trees in the near future”.

Rappoport Development Consulting Services LLC provides certified arborist consulting services for infrastructure projects.   Certified arborist-consulting services include tree inventories, tree monitoring, tree construction protection plans and best management practices, tree risk assessment, tree health assessment, tree and landscape appraisal services.  Mr. Rappoport is an International Society of Arboriculture certified arborist and certified tree risk assessor, a C-27 California Landscape Contractor and a professional horticulturist.  For decades, Mr. Rappoport worked for public and private master sub-division builders as a landscape and grading superintendent, manager and director of land development.  More information is available at https://landscapeexpertwitness.com/.

Click to see aerial pruning here Euc Pruning

Tree Risk and Premise Liability: Property Owners Beware!

Trees, Premise Liability and Risk Management

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