Background:
On June 14, 1999, Jennifer Gascho did what many people throughout
Ontario do on a daily basis - she parked her now-husband's car in a
legal parking spot which happened to have an overhanging tree limb.
What made her situation unusual was that sometime during the next 45
minutes, that overhanging tree limb came down onto the Plaintiff's
parked car, causing substantial damage to the vehicle. The tree limb
in question was the responsibility of the Corporation of the Town of
Clinton, the Defendant municipality.
Issues:
(1) Liability:
The question for this Court to determine is: Who is responsible for
paying for the damage to the vehicle in question - the Plaintiff or
the Defendant ? It took 3 days for all of the evidence and oral
argument from the parties' lawyers to be presented.
(2) Damages:
Regardless of who is liable, the amount of damages is also in
dispute.
Facts:
The maple tree limb that fell onto the Plaintiff's 1984 Fiero was 12
to 14 inches in diameter, was 70 feet or longer in length and,
according to Mr. Frederick Thomas who is an expert on trees,
probably weighed 2000 to 3000 pounds.
No one saw the tree limb fall. Ms. Gascho testified that there may
have been a light breeze blowing when she parked the car. She also
testified that she was not aware of any gusts of wind. But she
candidly admitted that she does not know what the weather was doing
when the limb came down onto the car, since she was inside a
building and her office did not have any windows in it.
The only other two witnesses who were able to testify about events
at or around the time that the limb fell were Steven Gibbings, the
Defendant's Utilities Department Foreman on the day in question, and
Frederick Thomas, a tree inspector and cutter.
Mr. Gibbings testified that June 14, 1999 was a nice, normal summer
day. But he further testified that a brief windy rain storm came
through Clinton at about the time that the tree limb fell, causing
numerous branches to fall from trees. Mr. Gibbings was not aware of
any other tree limb the size of the one that fell onto the
Plaintiff's Fiero coming down in the Town of Clinton on June 14,
1999. Mr. Gibbings further testified that he did not have any
evidence that wind or weather caused the tree limb to fall.
Mr. Thomas testified that he was working in another part of the Town
of Clinton on June 14, 1999. He recalls quite a burst of wind at
around 10 am. He thought the wind had something to do with the limb
coming down. But he was not at the scene when it came down.
Neither party has introduced any weather records for June 14, 1999
into evidence at this trial.
Mr. Gibbings testified that tree maintenance in the Town of Clinton
was the joint responsibility of the Utilities Department Foreman and
the Public Works Department Foreman until April 1999, after which it
became the sole responsibility of the Utilities Department Foreman
(who was Mr. Gibbings at the time in question).
Mr. Gibbings described how the tree maintenance was done by the
Defendant. He said that the Defendant did not have any written
policy regarding tree inspection. He testified that there are
Ontario Provincial Standards prescribed by the Ontario Government to
act as guidelines. But he could not tell the Court what they were.
Mr. Gibbings said that normally a list called a "Tree List" was
prepared each year which showed the trees to be removed and the
trees that needed pruning. He described an annual inspection being
done in the Defendant municipality in the fall of each year. This
inspection was normally done by himself and by Mr. Frederick Thomas,
who was the owner of Southwestern Tree Service. The two of them
would normally drive around the Town of Clinton looking at the trees
for which the Defendant was responsible. Mr. Gibbings stated that he
was just looking for the very obvious cases in the "drive-by"
inspections.
As a result of the annual inspections, trees were added to the "Tree
List" that required either cutting or pruning. If any of the staff
of either the Utilities Department or the Public Works Department
saw a problem with a tree, that person could add the tree to the
"Tree List." In addition, if one of the Defendant's ratepayers
brought a concern about a tree to the attention of either the
Utilities Department or the Public Works Department, that tree was
also added to the "Tree List."
The Tree Lists for 1997-98, 1998-99 and 1999-2000 were filed as
Exhibits 14, 11 and 15 respectively in this trial. There is nothing
in the evidence that indicates conclusively whether the subject
maple tree was on any of these Tree Lists.
The tree from which the limb fell on June 14, 1999 has been
described as a maple tree that started out with a single trunk for
the first 20 to 25 feet. At that point there was a crotch in the
tree from which 2 separate trunks grew upwards. For ease of
reference, I will describe the trunk from which the limb fell on
June 14, 1999 as the "front trunk" and the other one as the "rear
trunk."
The limb broke off on the front trunk 10 to 12 feet above the
crotch. The rear trunk was 70 to 80 feet tall.
Mr. Joseph Gibson was qualified by the Plaintiff as an expert to
give evidence on the health of trees and tree management practices.
Mr. Gibson made his observations of the tree in question through the
use of photographs, some of which were taken on behalf of the
Plaintiff and some of which were taken on behalf of the Defendant.
Mr. Gibson never saw the actual tree in person.
Mr. Frederick Thomas, an expert in tree inspection and maintenance,
was called as an expert witness by the Defendant. His company has
also been on retainer to the Defendant continuously for the last 20
years.
Mr. Thomas never saw the subject tree on June 14, 1999, or in the
next few days which followed. Except in the same photographs that
Mr. Gibson saw, Mr. Thomas never saw the limb that actually came
down. However, Mr. Thomas was the one who cut down the remainder of
the subject tree in August 1999. Exhibits 8, 9, 17A and 17B are
photographs of the subject tree as Mr. Thomas saw it in August 1999.
Law:
Starting in 1926, there have been several cases dealing with the
issue of liability when all or part of a tree has fallen down.
The Ontario Court of Appeal, in Huestis v. City of Toronto,
[1926] 3. D.L.R. 142, found the municipality liable when a tree was
in a decaying condition which was could have been easily ascertained
by city employees.
In C.K.O.Y Limited v. The City of Ottawa, [1952] O.W.N. 367,
the Court found that the municipality was not liable because there
was no evidence that even a minute inspection would have revealed
the actual condition of the tree. The condition of the tree was not
discoverable until after the limb fell. The Court found that the
test was ordinary prudence and whether the municipality took
reasonable steps.
In Bottoni v. Henderson (1978), 21 O.R. (2d) 369, the Court
found that the tree appeared normal to everyone and that there had
been nothing to warn the Defendant of any danger or decay prior to
the accident. In ruling that it was not a case of strict liability,
the Court found that the owner of the tree was not liable.
The Ontario Court of Justice (General Division) considered the issue
in 1996 in the case of Kelley v. Town of Ingersoll, [1996]
O.J. 2318. In that case, the subject tree was partly on town
property and partly on private property. The tree expert who
testified at the trial never saw the actual tree, but was relying on
photographs and the transcript of the examination for discovery of
the town engineer. After the branch fell, it became apparent that
the tree was diseased and most of the core of the trunk had rotted
out. The tree expert said that a drive-by inspection would have
indicated to a knowledgeable inspector that the tree was a potential
hazard. The tree expert was critical of the municipality's
inspection program as it was not regularly scheduled and there was
no systematic documentation of the inspections. The Court looked at
the photographs and said that they clearly showed signs of
deterioration. The Court found that the tree was a danger to the
public and that the danger could have been easily discovered by a
proper inspection. Accordingly, the Court found both the
municipality and the private land owner liable.
In its reasons in Kelley v. Town of Ingersoll, supra.,
the Court said "I am satisfied, however, that the duty of care owed
by the Municipality is not the same as the duty of care owed by [the
private land owners]…. [The private land owners] were only expected
to maintain their property and the tree located on that property.
The Municipality was responsible for the inspection and maintenance
of hundreds of trees located on public property and it cannot be
held to the same standard of care as [the private land owners]." The
Court then found the private land owners 65 % to blame and the
Municipality 35 % at fault.
The Ontario Court of Justice (General Division) again considered the
issue in 1996 in Doucette v. Parent, [1996] O.J. 3493. In
that case, the tree broke off because of internal decay. There was a
windstorm at the time of the accident, but there was nothing unusual
about it. The Defendant did not have any knowledge of any rot or
instability of the tree. The rot in the trunk was not evident on the
outside. There was nothing to warn a reasonable tree owner of any
danger, and therefore, the tree owner was found not liable. The
Court stated liability in negligence should be found against an
owner of a tree in circumstances where a reasonable person, on
viewing or inspecting the exterior of the tree, would conclude that
the tree is in need of expert attention.
As recently as 2000, the Ontario Superior Court of Justice has
considered the issue. In 654287 Ontario Ltd. v. City of Windsor,
[2000] O.J. 1804, the Court found that the Plaintiff failed to prove
on the balance of probabilities that the Defendant was negligent.
After the tree fell, it was evident that there was rot in the core
of the tree. But prior to the tree falling, there was no visible
sign of decay on the tree. In fact, the evidence was that the tree
appeared healthy. The Court found that the fact of the tree falling
was not sufficient to shift the burden of proof to the Defendant.
Analysis:
Limbs don't fall from trees without a reason. However, the owner of
the tree (in this case, the Defendant) cannot be held responsible
for damage that results from the limb falling simply because a limb
or tree falls. For liability to result, there must be negligence on
the part of the owner of the tree. The Plaintiff has the obligation
to prove that the Defendant knew or ought to have known that the
tree in question was a danger.
There may have been a windstorm at the time that the subject limb
fell. But I don't find anything unusual about it. While wind may
have assisted the limb to fall at the time that it did, the primary
reason that the subject limb fell was because, as Mr. Gibbings, Mr.
Thomas and Mr. Gibson testified, there was decay in the area of the
break. This decay was in both the limb which fell and in that
portion of the front trunk which was left standing. Because this
decay was inside the bark, the question to be answered is whether
there was anything prior to the accident that acted as a warning to
the Defendant that the subject maple tree was a danger.
From the evidence of Mr. Thomas and Mr. Gibson, I find that the
following are indicators of the health of a maple tree:
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1) |
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holes in the tree;
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2) |
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discolouration of leaves;
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3) |
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dead limbs;
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4) |
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cracks or splits in the tree, including coppice growth
(which is more than one stem growing from the trunk);
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| |
5) |
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different colours of bark or bark off the tree;
|
| |
6) |
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discolouring of burrs (or wounds) where a limb has
previously been severed. |
Now let us consider each of those
indicators in light of the facts of the case before this Court. We
must remember that neither Mr. Gibson nor Mr. Thomas saw the fallen
limb at any time. However, both of them saw the photographs which
are before this Court.
Holes in the Tree:
I did not hear any evidence of any holes in the subject tree.
Discolouration of Leaves:
Mr. Gibson testified that the leaves above the break on the fallen
limb were probably discoloured, giving the leaves an unhealthy look.
However, there is no evidence of this. In fact, when Mr. Gibbings
arrived at the scene of the fallen limb on June 14, 1999, he stated
that he noticed that the leaves on the fallen branch were in full
bloom. He did not notice any indication of discoloration on that
branch and, to his recollection, there were no branches that were
without leaf.
One might want to speculate on how carefully Mr. Gibbings looked at
the fallen limb, given the fact that his job was to have the mess
cleaned up and the road re-opened as quickly as possible. However, I
am not prepared to find that any of the leaves on the fallen limb
were discoloured.
On the day that he cut the remainder of the subject tree down in
August, Mr. Thomas observed that it was in full leaf, that the
leaves were a dark green (a very good colour) and were very healthy
Dead Limbs:
Mr. Gibson testified that there were probably some dead limbs in the
tree. But no one testified that there actually were any dead limbs
in the tree in June or in August 1999.
On the day that he cut down the remainder of the subject tree down,
Mr. Thomas did not see any dead wood on the remaining portion of the
tree;
Mr. Gibbings testified that he did not know if limbs had earlier
been cut off the limb that fell.
Mr. Thomas testified that at least 2 or 3 limbs had been cut from
the subject tree prior to June 1999. But he did not know when the
last time was that the subject tree had been trimmed.
It is quite possible that if the subject tree had been trimmed in
the years leading up to 1999, the dead wood that would otherwise
have alerted everyone to problems with the tree would not be
apparent. I found the Defendant's record-keeping of what was done
when to what trees to be below what I believe the standard should be
for a municipality. In my opinion, the Tree Reports should have had
much more information in them than what was recorded.
However, while I am suspicious that dead limbs that otherwise would
have provided warning signs to the Defendant were cut from the tree
on earlier occasions, I am not prepared to find that as a fact.
Cracks/Splits/Coppice Growth:
There was no evidence presented which would indicate a crack or a
split in the tree.
The subject tree had what is called a "coppice growth." This occurs
when more than one stem is growing from the trunk of the tree. Mr.
Gibson testified that the coppice growth would allow a greater
chance for moisture to get into the tree in that area and therefore
cause the tree to decay or rot faster.
Mr. Gibbings testified that the crotch of the subject tree was
inspected in April 1999 by using a bucket truck, and that no rot was
discovered.
On the day that he cut the subject tree down, Mr. Thomas did not
find any decay in the crotch of the tree when he cut it up. In fact,
Mr. Thomas said that he only discovered two areas of decay in that
portion of the tree that remained for cutting in August 1999. Those
two areas were in the area of the break and in the area of the burr
which was on the front trunk approximately 5 or 6 feet above the
crotch and 5 or 6 feet below the break.
Thus, it appears that the coppice growth in this tree was not a
factor in the limb falling.
Bark:
According to both expert witnesses who testified, the bark of the
tree can give an indication of a problem with the tree in two
different ways. One way is if the tree has lost some of its bark.
There was no indication of that in this case.
The second way of using bark as an indicator is to see if there is
any discolouration.
Mr. Gibbings testified that he did not see any discolouration in the
bark of the subject tree. But that evidence differs from what Mr.
Gibson told the Court. Mr. Gibbings' evidence was also contradicted
by Mr. Thomas in cross-examination. Therefore, one wonders how
carefully Mr. Gibbings examined the subject tree.
Initially in his evidence, Mr. Thomas testified that there was no
discolouration in any of the bark which remained and that there was
nothing unusual about the bark from the ground to the break. He said
that the only discolouration that he saw in the tree was in the area
of the burr on the front trunk which was approximately mid-way
between the crotch and the break. However, under cross-examination,
Mr. Thomas admitted that he could see different colours in the bark
in the photographs filed as Exhibits 9 and 17A, which are
photographs of the subject tree taken August 4, 1999.
Mr. Gibson testified that some of the bark on the tree in the photos
was a different colour from the rest of the tree's bark. While this
was not evident in Exhibit 3 (which is a photograph of the subject
tree taken from a distance), Mr. Gibson testified that it is evident
in Exhibit 7 (which is a close-up photograph of the same tree). From
my own observation of Exhibit 7, I would concur with Mr. Gibson. Mr.
Gibson testified that this discolouration in the bark should have
been a warning that there was a problem with this particular tree.
Burr:
The only burr that was referred to in the evidence was the one
already mentioned which was on the front trunk approximately mid-way
between the crotch and the break.
On the day that he cut the subject tree down, Mr. Thomas observed
this burr which was a large dark area. He assumed that it was a
pruning scar. He testified that there was decay in this burr, but
that it was not deep enough to cause him any concern. Mr. Thomas
does not believe that this wound weakened the subject tree.
On the other hand, Mr. Gibson testified that such a large dark burr
would cause him concern. He believed that the discoloured burr would
weaken the front trunk.
I am left with having to weigh the evidence of two expert witnesses,
each of whom is well qualified in the areas to which they testified.
Mr. Gibbings' qualifications paled in comparison to the
qualifications of Mr. Gibson and Mr. Thomas. I also question Mr.
Gibbings' recollection of some of the events. In his evidence, he
said that on June 15, 1999 he inspected the remainder of the tree
that was left standing with Mr. Thomas. However, Mr. Thomas
testified that he never saw the subject tree on June 15, 1999.
Mr. Thomas testified that, while he inspected all of the trees in
the Town of Clinton at some point prior to June 14, 1999, he could
not tell the Court when he specifically inspected the subject tree.
He recalled looking at the subject tree several times during the 5
years prior to June 14, 1999. His looking at the subject tree
included getting out of his vehicle and looking at the tree. But he
could not say what he specifically did to inspect the subject tree.
While Mr. Thomas does remember looking at the large scar on the burr
earlier, and while he was not concerned about it because he did not
think it was deep enough, he did not measure how deep it was until
he cut the tree down.
As I have already said, Mr. Gibbings testified that the crotch of
the subject tree was inspected in April 1999 by using a bucket
truck, and that no rot was discovered. But Mr. Gibbings does not
give any further details of the inspection or what caused him to
inspect the tree more closely. In fact, Mr. Gibbings testified that
an aerial inspection from a bucket truck would only be done of trees
that were suspect trees. Why was this tree inspected in April 1999 ?
The Court was not told. The records produced by the Defendant do not
say.
When he attended at the site in August 1999, Mr. Thomas did not
notice anything in the area of the break that would indicate that
the subject tree was decayed. Mr. Thomas went on to say that there
was nothing on the exterior of the tree that would indicate rot or
decay on the interior.
But Mr. Gibson testified that the discolouration of the bark and the
large dark burr on the subject tree were clues as to problems with
the tree. As a result of these clues, Mr. Gibson stated that he
would probably have recommended an aerial inspection of the tree
with a bucket truck (or at least a ladder.) He testified that one
could have checked for rot inside the burr.
I was impressed with the forthrightness of Mr. Gibson during his
testimony. While he was retained by the Plaintiff as an expert
witness, he has nothing to gain from the outcome of this case.
Contrast that with the position that Mr. Thomas is in. Because of
his relationship with the Defendant, he is not completely
independent or impartial. In fact, for the past 20 years, Mr. Thomas
has had some responsibility for inspecting, trimming and cutting
trees for the Defendant.
Having heard and considered all of the evidence, I rule out holes,
leaf discolouration, dead limbs, cracks, splits, coppice growth and
the loss of bark as providing any warning signs to the Defendant
that the subject tree was a danger.
Was there anything else to warn a reasonable tree owner of any
danger with the subject maple tree ? I find that there were some
warning signs. Based on the evidence that this Court has heard, the
Defendant should not be able to say that the subject tree appeared
healthy.
While there was no visible sign of decay in the subject tree, the
discolouration of the bark and the discolouration and size of the
burr should have provided sufficient warning signs to the Defendant
that the subject tree was a danger. After considering and weighing
all of the evidence presented in this trial, the Court concludes
that a drive-by inspection should have indicated to a knowledgeable
inspector that the tree was a potential hazard and in need of a
closer inspection.
A closer inspection would have concluded that the subject tree was
in need of expert attention. Liability in negligence should be found
against an owner of a tree in circumstances where a reasonable
person, on viewing or inspecting the exterior of the tree, would
conclude that the tree is in need of expert attention.
Thus, the Court finds that the Defendant did not meet the necessary
standard of care even for a municipality (assuming that one accepts
the statement in Kelley v. Town of Ingersoll, supra., that
the standard of care for a municipality is lower than for a private
land owner). Accordingly, the Defendant is liable for the damages
suffered by the Plaintiff.
Damages:
The Plaintiff is claiming damages in the total amount of $ 4,590.01
together with interest and costs. The $ 4,590.01 is divided into 2
parts, being $ 3,500.00 for his Fiero and $ 1,090.01 for towing and
storage of the motor vehicle.
Dealing first with the car itself, at the time that the Plaintiff
purchased the 1984 Fiero in approximately 1997 for $ 1,500.00, it
had 120,000 kilometres on it. The body of the Fiero is made of
fibreglass. The Plaintiff had the engine re-built, put new tires and
rims on the car and had the body painted. Much of the work was done
by the Plaintiff himself. By June 1999, the car had approximately
180,000 kilometres on it.
The Plaintiff testified that, in addition to the original purchase
price of $ 1,500.00 and his own labour, he had paid $ 1,000.00 for
parts. He further testified that immediately prior to the accident
on June 14, 1999, his Fiero was in excellent condition. He stated
that if he had advertised the car for sale, he would not have had
any problem selling it for $ 3,500.00.
Exhibits 1 and 2 are photographs of the Plaintiff's Fiero with parts
of the subject limb on and around the car. According to the
Plaintiff, his car is not repairable. I have no reason to disbelieve
him. I also find that the car was worth $ 3,500.00 immediately
before the tree limb fell on it.
However, the Plaintiff admitted that he has not salvaged anything
from the vehicle. He still has the Fiero in his possession. By
looking at Exhibit 2 in particular, it appears to me that the left 2
tires and rims at least are not damaged. I cannot comment on the
rights tires and rims, since I do not have any photographs or other
evidence showing their condition. I find that there should be some
deduction for parts that the Plaintiff can or should have salvaged
from his car.
Dealing next with the towing and storage bill, being Exhibit 10, the
towing portion of the bill is $ 55.00 and should be allowed in full.
According to Exhibit 10, the car was stored from June 14, 1999 to
November 8, 1999, being a total of 148 days. The amount being
charged was $ 6.00 per day. Thus, the total storage charge being
claimed is $ 888.00. On November 8, 1999, the Plaintiff had the car
moved to another location which was and is in the control of the
Plaintiff and does not cost him any money.
The Plaintiff admitted under cross-examination that no one on behalf
of the Defendant ever expressed an interest in the car. He further
admitted that he knew that the car would not be repaired. Thus, I
find that the Defendant should have stopped the storage charges from
accumulating much sooner than he did.
I therefore assess the Plaintiff's damages as follows:
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a) |
damage to the car |
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$ 3,500.00 |
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less salvageable parts
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- 600.00 |
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net damage to the car
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$ 2,900.00 |
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b) |
towing charges |
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$
55.00
|
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c) |
storage charges - 45
days @ $ 6.00 per day |
$
270.00
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Total Damages |
$
3,225.00 |
Conclusion:
There will be judgment in favour of the Plaintiff against the
Defendant for $ 3,225.00, together with pre-judgment interest which
I am fixing in the amount of $ 320.00.
Costs:
At the conclusion of the final submissions by counsel, I indicated
that I would give each party an opportunity to address the issue of
costs after the Court's decision had been released. If the parties
are unable to agree on the costs within 21 days, they may make
arrangements with the Court Clerk for either a telephone conference
call or a court date at which time I will hear submissions on the
issue of costs.
Dated at Goderich, Ontario September 29, 2001.
______________________________________
Norman B. Pickell, Deputy Judge
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Arbitration Decisions - Norman Pickell - Gascho v. Town of Clinton
