Settlement Of Wrongful Death Survival Action/$670,000 With Right To Pursue Additional $300,000 In Insurance Coverage

On September 11, 2002, at or about 1:00 p.m., 46 year old, Keith Taylor was the front seat passenger in a motor vehicle driven by his cousin, travelling northbound on Route 202, a State Highway in the Buckingham Township section of Bucks County. Keith lived in Doylestown. He and his cousin were travelling to Peddler’s Village to do some shopping. As the vehicle passed the home of Diane and James Levell, a four acre property located on the West side of Route 202, a huge portion of one of the Levell’s Norway Maple trees broke away from the stem and fell. This particular portion of the tree had extended from its stem (the stem was 13 feet, 8 inches from the shoulder of the Southbound lane) fully across both the Southbound and Northbound lanes and over top PECO’s electrical wires hanging from poles on the Northbound side of the road. When it fell, it knocked the electrical wires to the ground, landed upon the passenger side of the vehicle and killed Keith Taylor.

The tree was a Norway Maple. This Norway Maple was both on the Levell’s property and within what is known as the Commonwealth “right-of-way.” The Commonwealth maintains a right-of-way on State highways so as to place traffic control type signs and to reserve the right to remove dangerous conditions that exist on private property so as to not endanger travelers on State Highways. In this case, plaintiff’s counsel, Anthony J. Baratta, Esquire, was retained by the Administratrix of Keith Taylor’s Estate, 23 months after the accident and with only 1 month remaining on the Statute of Limitations. A previous counsel who had been handling the manner refused to take the case stating that it would be impossible to prove that the homeowner and the Department of Transportation was responsible for causing Keith Taylor’s death.

Immediately upon being retained, an investigation was performed analyzing pictures of the tree that had fallen and investigating the site from which the tree had fallen. Township records were reviewed as well as records of the tree removal company. Prior to filing the lawsuit on the eve of the Statute of Limitations, Baratta was able to garner the expert opinion of an arborist that the tree was in fact dead, and had been dead for several years prior to the accident. Further, even though the tree appeared to be in full bloom, there was, according to this expert, outward signs of decay on the tree which should have alerted the homeowner that the tree was dead. Given the tree’s close proximity to the roadway, the homeowner should have taken steps to remove the tree so that the tragedy that ultimately did occur, would not occur.

The law requires that owner of land in or adjacent to a developed or residential area is subject to liability for harm, caused to others outside of the land by a defect in the condition of a tree thereon, if in the exercise of reasonable care the owner of the property would have discovered the defect and the risk involved therein and would have made it reasonably safe for repair or otherwise. (See Restatement (Second) of Torts, §365 (1965)). In the case of Barker v. Brown, 340 A.2d 566 (Pa. Super. 1975), the Pennsylvania Superior Court reasoned that, in imposing this duty upon land owners, that the “relatively minor expenditures in time and money that it will take to inspect and secure trees in a developed or residential area is not large when compared with the increased danger and potential for damages represented by the fall of such a tree.” The Barker Court required that the reasonable care standard imposes at least the duty to make a visual inspection.

Also, PennDOT, given its responsibility for its own right-of-way, has a duty of care to remove dangerous and defective trees from these areas. According to the Pennsylvania Superior Court case in Commonwealth of Pennsylvania, Department of Transportation v. Patton, 686 A.2d 1302 (Pa. 1997), it was determined that the Commonwealth is not immune from liability for dangerous conditions of trees within the Commonwealth’s right-of-way if PennDOT has either actual or constructive notice of the risk of unreasonable harm.

In this case, after filing the Complaint, Mr. Baratta conducted numerous depositions of Buckingham Township police department personnel, PennDOT personnel and the homeowners. Through those depositions, Mr. Baratta learned that PennDOT’s chief roadside inspector for the Bucks County area failed to look at this particular tree because he did not know that the tree was within the Commonwealth’s right-of-way. He admitted, after extensive cross-examination, that the tree was a dangerous and defective tree and that if he had looked at it, he would have been able to observe that.

With regard to the homeowners, Mr. Baratta was able to establish that they were regularly in or around the location where this tree was performing landscaping work. He also established that a crack in a tree, if they observed it, would have been something that would have led them to take the tree down given its size and its closeness to the highway. Lastly, Mr. Baratta, through his expert witness arborist Andrew W. Graham, proved through a review of photographs taken after the tree had fallen, that a crack had extended down the trunk from a major trunk fork located about 9 feet above the ground and that this crack had existed for several years prior to the accident.

The homeowners Levells had a $300,000.00 policy limit covering their property. Prior to trial, the Lavells agreed to tender this $300,000.00 policy. Under Pennsylvania law, damages recoverable against the Commonwealth of Pennsylvania are capped at $500,000.00. Pursuant to
a Confidentiality Agreement, the claim against PennDOT was resolved for an undisclosed amount of money.

As part of the resolution of the case, Mr. Baratta retained the right to pursue an additional $300,000.00 in coverage against the homeowners. Through discovery, Mr. Baratta learned that the homeowners owned a property adjacent to and contiguous to the property from which the tree fell. Through a Declaratory Judgment action filed in Federal Court, Mr. Baratta has made the claim that the homeowners’ insurance carrier on that contiguous and adjacent property owed a duty to extend liability coverage to the homeowners for the injury and death caused to Mr. Taylor. The insurance company has opposed that Declaratory Judgment action and the matter has yet to be resolved as of the presentation of this factual scenario.