Firm succeeds this time in $47.5 million tree falling settlement

In 2016, plaintiffs' attorney Tim Tietjen's firm Rouda, Feder, Tietjen & McGuinn lost a tree falling case after the 1st District Court of Appeal upheld a trial court's summary judgment ruling. Two years later, Tietjen has settled a new but similar case for $47.5 million.

The gravamen of the appellate ruling was that San Mateo County was not liable for a rotted tree that fell on a child who was sleeping in a tent because the tree was a "natural" condition in an unaltered area. Alana M. v State of California, 245 Cal.App.4th 1482 (Cal. App. 1st Dist. Feb. 29, 2016).

The $47.5 million settlement, reached in May, also involved a case of a rotting tanoak tree falling on a sleeping child in San Mateo County. Tietjen's client, 12-year-old Zachary Rowe, was struck by a collapsing 72-foot tree in 2012, causing injuries that required amputation of one leg and half of the pelvis. Rowe v. Pacific Gas & Electric Company, CIV515962 (S.M. Super. Ct., Jan. 4, 2013).

Although the case was eerily similar to the one Tietjen lost, there were some crucial facts that set it apart.

Per the agreement, the county and its contractor, Davey Tree, agreed to pay $30 million to settle the case. PG&E and WECI agreed to pay $17.5 million, with all the money being paid by insurers for WECI, a contractor for PG&E.

After defendants collectively lost four trial court motions to dismiss the case, they appealed to the 1st District, which ruled in two published opinions that neither the county nor PG&E were immune from the lawsuit.

In the 2016 case, the appellate court ruled that because the tree was considered unimproved property, meaning it was not altered by man, the county was not liable for any damages.

Under California Gov. Code 831.2, a public entity can seek immunity from a natural condition that caused injury on an "unimproved property."

"That case gave some direction of what might be an improved property," said Tietjen.

In the Rowe case, Tietjen argued the tree's roots underneath the tent placed it within close proximity of the accident site. The campsite included multiple changes, including paved roads, and the removal of mulch and trees which contributed to the tree's decay, according to a plaintiff's expert. The tree was also infected with a fungal disease.

"All of these different factors impacted the development of the fungus, and the court in our case felt those types of facts raised triable issues of fact as to whether it was growing in an unimproved area," Tietjen said.

This time, the appellate court agreed with Tietjen and ruled against the county. County of San Mateo v. Superior Court of San Mateo County, Cal. App.4th A146077 (Cal. App. 1st Dist. July 25, 2017).

"Unlike in Alana M., there is evidence the trunk of the tree was growing within the boundary of Zachary's own campsite which, for the reasons discussed post, we conclude raises a triable issue of fact as to whether the campsite is unimproved," the panel ruled in Rowe.

The panel also said the tree was "considerably" closer to the accident site and closer to other man-made objects. In addition, evidence of man-made changes, such as compacted soil, the removal of surrounding trees and mulch, contributed to the tree's decay, the panel ruled.

In its other decision regarding PG&E, the appellate court held payment to any landowner satisfied the payment exception as to all landowners involved. As a result, liability extends to any landowner.

Tietjen said according to his research, the settlement is the largest pretrial personal injury settlement for a single plaintiff in California. He said the ruling will help improve safety in state public spaces.

Dennis Ward, a partner at Ropers Majeski Kohn Bentley PC who represented the county, said defense attorneys were faced with the prospect of having a jury decide whether the case constituted an "improved" area.

"We felt at this point it was better to try resolve it instead of try the case," said Ward, who commended the work of all attorneys involved.

Robert Morgenstern of Maranga Morgenstern APLC represented WECI. Greg Read, special counsel at Gough & Hancock LLP, represented PG&E.

In a statement, the company said: "We are pleased that all parties have now reached a settlement in this tragic case. The share of the settlement on behalf of PG&E and its contractors was entirely funded by the contractor's insurers. As a reminder, the incident occurred on county-owned property and the tree did not fall on any PG&E facilities."

The settlement is one of many cases involving collapsing tees that are dying as a result of the California drought.

Browne Greene of Greene Broillet & Wheeler LLP, who has litigated tree fall cases, said the duty falls on the government to be responsible for trees on its property. "A person is not going to know how to inspect a tree. We depend on the government to do what their duty states," Greene said.