9/24/19
1 TREES, TREES AND MORE TREES!
IMPLEMENTING AN EFFECTIVE PROGRAM TO
MANAGE THE EXPOSURES
PROVIDED BY:
CALIFORNIA SANITATION RISK MANAGEMENT
AUTHORITY (CSRMA)
PRESENTER:
DAVID CLOVIS
CLOVIS CONSULTANTS AND ASSOCIATES
[email protected]
AGENDA
• EXPOSURE TO TREE RELATED INCIDENTS AND THEORIES OF LAW • THE BASIC ELEMENTS OF A TREE PROGRAM
• CASE HISTORY OF TREE INCIDENTS
• CREATING A PLAN OF ACTION TO IMPLEMENT A PROGRAM
• QUESTIONS
9/24/19
2 TORT EXPOSURES
• RISK MANAGEMENT IS THE PROCESS OF IDENTIFYING,
ASSESSING AND CONTROLLING THREATS TO AN
ORGANIZATION'S CAPITAL AND EARNINGS. THESE
THREATS, OR RISKS, COULD STEM FROM A WIDE VARIETY
OF SOURCES, INCLUDING FINANCIAL UNCERTAINTY, LEGAL
LIABILITIES, STRATEGIC MANAGEMENT ERRORS, ACCIDENTS
AND NATURAL DISASTERS.
CALIFORNIA TORT CLAIMS ACT
• BEFORE YOU MAY SUE A PUBLIC ENTITY, YOU MUST FIRST FILE A CLAIM MEETING THE REQUIREMENTS OF THE CALIFORNIA TORT CLAIMS ACT (GOVERNMENT CODE §§ 810- 996.6). THIS LAW APPLIES TO PUBLIC ENTITIES SUCH AS STATE, COUNTY, AND LOCAL
GOVERNMENT AGENCIES OR DEPARTMENTS, AS WELL AS TO GOVERNMENT EMPLOYEES.
• WITH VERY FEW EXCEPTIONS, YOU CANNOT SUE THE GOVERNMENT FOR MONEY
DAMAGES UNLESS YOU HAVE FILED A WRITTEN CLAIM WITHIN THE LEGALLYSPECIFIED TIME PERIOD.
• FILING A CLAIM GIVES THE AGENCY THE OPPORTUNITY TO SETTLE THE CLAIM BEFORE A
LAWSUIT IS FILED AND TO INVESTIGATE THE CLAIM SO THAT IT CAN PROPERLY DEFEND ITSELF, OR TO CORRECT THE CONDITIONS OR PRACTICES THAT LED TO THE CLAIM. 9/24/19
3 DANGEROUS CONDITION OF PUBLIC PROPERTY
• 830. AS USED IN THIS CHAPTER: (A) "DANGEROUS CONDITION" MEANS A CONDITION OF
PROPERTY THAT CREATES A SUBSTANTIAL (AS DISTINGUISHED FROM A MINOR, TRIVIAL OR
INSIGNIFICANT) RISK OF INJURY WHEN SUCH PROPERTY OR ADJACENT PROPERTY IS
USED WITH DUE CARE IN A MANNER IN WHICH IT IS REASONABLY FORESEEABLE THAT IT WILL BE USED. (B) "PROTECT AGAINST" INCLUDES REPAIRING, REMEDYING OR
CORRECTING A DANGEROUS CONDITION, PROVIDING SAFEGUARDS AGAINST A DANGEROUS CONDITION, OR WARNING OF A DANGEROUS CONDITION. (C) "PROPERTY OF A PUBLIC ENTITY" AND "PUBLIC PROPERTY" MEAN REAL OR PERSONAL PROPERTY
OWNED OR CONTROLLED BY THE PUBLIC ENTITY, BUT DO NOT INCLUDE EASEMENTS,
ENCROACHMENTS AND OTHER PROPERTY THAT ARE LOCATED ON THE PROPERTY OF THE PUBLIC ENTITY BUT ARE NOT OWNED OR CONTROLLED BY THE PUBLIC ENTITY.
COUNTY OF SAN MATEO
• 12 YEAR OLD BOY INJURED BY FALLING TREE IN PUBLIC CAMPGROUND • $47.5 MILLION SETTLEMENT
• UTILITY CONTRACTOR
• COUNTY
9/24/19
4 IMMUNITIES
• TRAIL IMMUNITY (§ 831.4)
• HAZARDOUS RECREATIONAL IMMUNITY (§ 831.7)
• NATURAL CONDITION OF UNIMPROVED PUBLIC PROPERTY IMMUNITY (§ 831.2)
CITY AND COUNTY OF SAN FRANCISCO
• $14.5 MILLION PAID TO FAMILY AFTER WOMAN PARALYZED BY TREE LIMB IN
PUBLIC PARK
9/24/19
5 Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards
therefor.
DESIGN IMMUNITY
INVERSE CONDEMNATION
• CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS SEC. 19.
PRIVATE PROPERTY MAY BE TAKEN OR DAMAGED FOR PUBLIC USE ONLY
WHEN JUST COMPENSATION, ASCERTAINED BY A JURY UNLESS WAIVED, HAS FIRST BEEN PAID TO, OR INTO COURT FOR, THE OWNER. THE
LEGISLATURE MAY PROVIDE FOR POSSESSION BY THE CONDEMNOR
FOLLOWING COMMENCEMENT OF EMINENT DOMAIN PROCEEDINGS
UPON DEPOSIT IN COURT AND PROMPT RELEASE TO THE OWNER OF
MONEY DETERMINED BY THE COURT TO BE THE PROBABLE AMOUNT OF JUST COMPENSATION.
9/24/19
6 CASE LAW
• MERCURY CASUALTY V CITY OF PASADENA
• WGS V CITY OF OROVILLE
TREE MAINTENANCE
CHALLENGES
Challenges
Type
Number
Disease
Drought
Age
Irrigation
Location
Crews
9/24/19
7 Easements-Front Yards
Medians
Parks
City Properties
Planting Strip
9/24/19
8 PROBLEM STATEMENT
>
Responsibilities
(Sidewalk and
Tree
Maintenance &
Backlog)
Resources
(Staffing,
Equipment, &
Contractor
Services)
HR/HF LR/HF
HR/LF LR/LF
Risk Management Matrix
Risk
Frequency
9/24/19
9 TOOLS
GONZALES V. SAN JOSE
• THIS CASE INVOLVES A PERSONAL INJURY SUIT RESULTING FROM A SLIP AND FALL ACCIDENT THAT OCCURRED ON A SIDEWALK OWNED BY THE CITY OF SAN JOSE.
THE PLAINTIFF SUED NOT ONLY THE CITY OF SAN JOSE, WHO OWNED THE
SIDEWALK SHE FELL ON, BUT ALSO CHARLES HUANG, THE INDIVIDUAL WHOOWNED THE PROPERTY ADJACENT TO AND ABUTTING THE SIDEWALK. THE PLAINTIFF SUED
HUANG ON THE THEORY THAT HE HAD A COMMON LAW DUTY TO HER TO
MAINTAIN THE SIDEWALK IN A NONDANGEROUS CONDITION, AS WELL AS A DUTY IMPOSED UNDER SAN JOSE MUNICIPAL CODE SECTION 14.16.2205, WHICH MAKES
OWNERS OF PROPERTY ABUTTING CITY OWNED SIDEWALKS LIABLE TO THOSEWHO ARE INJURED AS A RESULT OF UNSAFE CONDITIONS ON THE SIDEWALKS. 9/24/19
10 TREE & SIDEWALK ORDINANCE
• DUTY TO MAINTAIN SIDEWALKS DOES NOT CREATE A DUTY
OF CARE TO THIRD PARTIES
• ABUTTING OWNERS MAY BE LIABLE TO THIRD PARTIES IF THE
DEFECT IS ATTRIBUTABLE TO THE OWNER- EVEN ABSENT
ORDINANCE
• TO IMPOSE A DUTY ON ADJACENT PROPERTY OWNER
TOWARDS USERS OF SIDEWALKS, AN ORDINANCE MUST
INCLUDE EXPRESS LANGUAGE TO THAT EFFECT.
• GONZALES V. CITY OF SAN JOSE (2004) 125
CAL.APP.4
TH 1127, 1136-1139
TREE & SIDEWALK ORDINANCE
• SHIFTING THE DUTY OF MAINTENANCE AND REPAIR
TO THE PRIVATE AND COMMERCIAL PROPERTY
OWNER
• REDUCE LIABILITY EXPOSURES BY 50%
• GENERAL LAW & CHARTER CITY ADOPTION OF
ORDINANCE
• ANALYSIS OF EXISTING LAW REGARDING
ORDINANCES
• ABUTTING OWNERS DUTY TO MAINTAIN SIDEWALKS
9/24/19
11 COMMON EXPOSURES
• GIRL JOGGING AVOIDSDOWN TREE STRUCK AND KILLED BY VEHICLE • MAN SITTING IN VEHICLE STRUCK BY FALLING TREE DETERMINED TO BE
DISEASED AND NEED FOR REPLACEMENT
• MAN IN PICNIC AREA STRUCK AND KILLED BY FALLING TREE
• FATHER WATCHING DAUGHTER HIGH SCHOOL SOFTBALL GAME
SUSTAINS CATASTROPHIC INJURY
PROGRAM MANAGEMENT
• IDENTIFY EXPOSURES BY LOSS HISTORY
• ADOPT AN AGENCY POLICY ON TREES
• CREATE A SYSTEM FOR RESPONDING TO TREE COMPLAINTS
• ALLOCATE DOLLARS TO MAINTENANCE
9/24/19
12 TREE PROGRAM
• INVENTORY
• IDENTIFY TREE ZONES
• IDENTIFY A MEANS FOR IDENTIFYING LIKELY HAZARDS AND EXPOSURES • DEVELOP A SCALE FOR EXPOSURES
• IDENTIFY A PROFESSIONAL ARBORIST TO OVERSEE PROGRAM
• DETERMINE FREQUENCY AND PRIORITY OF INSPECTIONS
• CONDUCT PROACTIVE MITIGATION OF TREE EXPOSURES
CASE DECISION NON-SUIT GRANTED
• GIRL STRUCK IN CROSSWALK ALLEGE FAILURE TO MAINTAIN TREES 9/24/19
13 LESSONS LEARNED
• SEWER MAINS IMPACTED BY ROOTS
• SIDEWALKS IDENTIFIED AS DANGEROUS
CONDITION CREATING TRIP AND FALL HAZARDS
• TREE INSPECTION PROGRAMS
• IMPORTANCE OF ORDINANCE AND EFFECTIVE
PROGRAMS
“IF ITS PREDICTABLE IT IS PREVENTABLE”!
BY: GORDON GRAHAM
9/24/19
14 QUESTIONS
BY DAVID CLOVIS
CLOVIS CONSULTANTS AND ASSOCIATES
[email protected]
925-989-3964