Case details

Plaintiff: Unmaintained tree at county park resulted in injury

SUMMARY

$47500000

Amount

Mediated Settlement

Result type

Not present

Ruling
KEYWORDS
fracture, leg
FACTS
On July 25, 2012, plaintiff Zachary Rowe, 12, a student, was camping with his family in a designated campground in San Mateo County Memorial Park when a 72-foot-tall tanoak tree came crashing down on his tent, crushing him while he slept. Zachary sustained to his right leg, buttocks and pelvis, as well as sustained internal organ damage. Zachary, acting through his guardian ad litem, Michelle Peters, sued the owner and operator of the campground, the county of San Mateo; the owner of a power line that was adjacent to the tree, Pacific Gas and Electric Co.; and the vegetation management contractor for PG&E, Western Environmental Consultants Inc. The company hired by the county to inspect its campsites for hazardous trees, The Davey Tree Expert Co., was later added as a defendant. Zachary alleged that the county was negligent for failing to warn of the dangerous condition of public property, that Davey Tree was negligent in its inspection the county campsite and that PG&E and Western ECI were negligent for failing to maintain the area around its power lines in a safe condition. Plaintiff’s counsel contended that the subject tree was surrounded by a cluster of five campsites, including the one occupied by Zachary’s family. It was also located approximately 20 feet from a paved access road and 37 feet from an adjacent power line, which was within striking distance, had the tree fallen in that direction. Counsel asserted that PG&E had hired Western ECI to perform vegetation management inspection services on its behalf near its power lines in the park and that the county had hired the Davey Tree Expert in 2007 to inspect its campsites for hazardous trees, but that the companies had failed to properly inspect the trees. The county’s counsel moved for summary judgment, claiming the tree was a natural condition of unimproved public property, rendering the county immune under Government Code § 831.2. In opposition, plaintiff’s counsel introduced evidence that, among other things, man-made changes during the construction of the campgrounds made the subject tree more susceptible to disease. The trial court concluded that the evidence raised a triable issue of fact as to whether the property was “unimproved,” and denied the county’s motion. The ruling was affirmed on appeal. PG&E claimed that Western ECI properly inspected the subject power line and the trees that allegedly posed a hazard to those lines and that the proper inspection was supported by the fact that the tree fell parallel to its lines and not toward them. PG&E also moved for summary judgment on the ground that it was immune under Civil Code § 846, California’s recreational-use immunity statute. However, plaintiff’s counsel asserted that, under the terms of the statute, any immunity was lost under the consideration exception because Zachary’s mother had paid a $50 camping fee to the park. The trial court agreed with plaintiff’s counsel and denied the motion. PG&E appealed, and the Court of Appeal affirmed the decision, holding that the consideration exception was not contingent upon receipt of consideration by the party claiming the immunity. Western ECI’s counsel moved for summary judgment, asserting that Western ECI owed no duty of care to Zachary. However, plaintiff’s counsel argued that Western ECI had presented no evidence showing that it should be exempted from California’s general duty of care. The court agreed, and found Western ECI had a duty to perform its tree inspections in a reasonable manner. The court also determined that the parties’ factual disputes in regard to determining whether Western ECI breached its duty should be decided by a jury. Davey Tree’s botanical pathology expert opined that the subject tree was not manifesting disease in 2007. Based on the expert’s opinion, Davey Tree’s counsel moved for summary judgment, claiming Davey Tree was not negligent. However, the plaintiff’s experts disagreed, opining that the tree’s hazardous condition would have been obvious as early as 2002. The court found that the disagreement raised a triable issue of fact, and denied Davey Tree’s motion., Zachary sustained a fracture to his left femur and a crush injury to his pelvis, which prevented blood flow to his right leg. He ultimately required amputations of his right leg (at the pelvis), anal sphincter and right buttocks area. He also suffered massive internal to his urethra, bowel and bladder. Although Zachary suffered multiple , his cousin, who slept next to him, escaped unscathed. Zachary was rushed to a hospital, but early on, his doctors recognized that the fight to save his right leg was futile, as the right leg essentially died as a result of blood flow being cut off to the limb. Less than a week later, the right leg was amputated above the knee, at the hip. However, necrosis from the vascular damage continued to spread into Zachary’s body, invading the organs in his shattered pelvis. Eventually, the doctors determined that the only way for Zachary to survive was to perform the most extreme lower-limb amputation, a hemipelvectomy, also known as a hindquarter amputation. Not only would Zachary lose his right leg, but also his right pelvis and buttock. Zachary was initially hospitalized for over six months. He endured over 30 surgeries and his paid medical bills exceeded $3 million. Based on the analyses of the plaintiff’s physicians, life care planner and economist, plaintiff’s counsel estimated that that Zachary’s future medical expenses, at present value, would total over $9 million. Based on the analyses of the plaintiff’s vocational rehabilitation expert and economist, plaintiff’s counsel estimated that Zachary’s lost earning capacity, at present value, would total over $4 million.
COURT
Superior Court of San Mateo County, San Mateo, CA

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