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Tree Removal Liability Sharing

By: John Harris
Tel: (954) 986-9405
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The number of storms in recent years increases the need for better tree and landscape decisions for property owners. Research regarding landscape damages for different storm intensities, what plants get knocked down by winds more often, and priorities for landscape restoration have been intensified by many southern state universities' forestry and horticultural departments. Trees and landscapes that are damaged from storm events are interesting situations for Arborists and landscapers. The calls after storms usually start with a property owner asking what to do about their storm damaged tree. For most Green Industry companies, the answer is usually remove it or restore it, but who is all knowing to be able to make that choice from just a phone call? Do any professionals still make these recommendations over the phone?

The decision between removal and restoration for individual trees takes more deliberation and information than it used to for Arborists. It is easy to provide an opinion for a two trunked tree that has vertical cracks in one trunk and signs of recent separation between the trunks where the included bark is located, but what about a pine tree with most live canopy browning out without any visual signs of damage. How can you show that your opinion regarding removal or restoration is the 'right opinion' for a particular tree or plant?

A professional provides a written Inspection Report that includes location information about the tree, tree characteristics, and your recommendations for maintenance. This provides the evidence and support for your opinion as the property owner decides what they want to do. It also takes an on site inspection to view and evaluate the tree or trees to give a professional opinion.

We have found that in reviewing who decides whether a tree should or should not be removed, it is always best to let the property owner be the final word. In fact, it is best that the property owner sign a document that states he/she decided whether the tree should be removed. You as the professional may know what is best, but beauty (or perceived safety) for a tree is in the eyes of the beholder; the property owner. Recommending that you give the owner the decision may not make sense to everyone, but this explanation can help you see why this idea stands the test of time.

You get a phone call about a problem tree from a home owner. They say the tree visually appears structurally sound and it may be in a location where if it fell, there are few if any targets. They ask you if the tree is safe, but calling any tree safe without inspecting it is not a good practice. Your information source, usually the property owner, may not remember to tell you about the trunk wound that is 30 feet up on the back side of the tree. They may not recognize that the fungal conks growing out of the root crown are not a normal part of a Maple tree. If you don't see it for yourself, who knows what can be found when someone else physically views the tree (which usually then happens after the tree falls on something or someone). You thought you were being a good and helpful Arborist when you said the tree should be fine over the phone. Now, someone is asking you how you could tell it was fine on the phone, and why they think you should be liable for the tree causing damages. Are you able to cover this liability in your business? How many times can you afford to cover this liability and the cost to your reputation?

Do the tree inspection. If a caller does not want to pay for your inspection, and probably was not paying for your opinion over the phone, there is no business to transact with them. In fact, without being paid for your opinion/recommendations, you technically are not being professional; just an interested member of the public. There are too many situations where we want to be helpful and end up being harmful. If you don't take an interest in protecting yourself, then you may not be in business to help others for very long. The knowledge of how to provide better answers for these types of calls, and how to do a better tree inspection, evaluation, or Risk Assessment, is readily available to all of us. It may be trite, but you don't need to go it alone; even as an Arborist.

Training and education are time tested ways for making better decisions and having better reasons for those decisions. Having industry credentials and educational degrees helps support your opinion over those who have none. Showing that an industry standard method is used for assessing the defects, the health, and risks for a tree can help you also. There are classes and published references that provide information to use in assessing trees which are most readily available through Green Industry professional and trade organizations. The ISA, TCIA, ANLA, SAF, CTLA, and other organizations have both books and training available for all of us. One tree assessment method, or standard, that is being promoted and used is the ISA Tree Risk Assessment. This standard provides a method with documentation for the assessment of a tree or trees on a property to support and defend the recommendations provided by an Arborist. Learning this assessment method takes practice, and is best done through formal classes and/or mentoring from a more experienced Arborist.

The written municipal code requirements (regulations, laws, and/or directives) can also be used as reasons for making a recommendation regarding a tree's future. In many areas around the United States and other countries, regulations set minimum quality standards, maintenance standards, and health condition standards for trees and landscape items. If you don't know about the regulations in your area, now is not too late to get a copy of them and learn them. Using code requirements has been one of the best tools for defending decisions made about trees in our practice and for many Arborists' areas of practice.

As in any other profession, getting a second opinion (or more) will help a property owner gain more information about their tree(s), and can provide an Arborist with a chance to see trees through another persons eyes. Many of us do have great experiences to share about the divergence of tree assessments and reasons provided for recommendations that are made by Arborists. That doesn't mean it is not a good idea to practice when you are dealing with a tree that is unfamiliar. One experience to share is regarding a native Gumbo Limbo tree in a residential neighborhood in south Florida.

The subject tree is located in the front yard of a residence, with approximately 50 x 80 foot of yard area out to the edge of the sidewalk and side property lines. The tree is on the left, or south, side of the yard, approximately 30 feet from the property line. Most Gumbo-Limbo trees are multi-leader growth forms with opposite branching patterns. This tree has 3 leaders, with a trunk diameter of 18 inches, a canopy height of 35 feet, and canopy width of 25 feet. A recent hurricane, Hurricane Wilma, broke off one leader leaving a severed stub 12 feet long. The property owner wants to keep the tree, but is concerned about the safety and aesthetics for the future.

One Arborist from a tree service told the owner that his company can prune the severed leader and then come back every year for 5 years to check and prune the tree so it grows back a more even canopy. He offered to add the cost for some reduction pruning to even the current canopy shape and remove some internal limbs.

Another Arborist from a landscape contractor told the owner that her company could remove the tree and replace it with a more beautiful flowering tree that would be better for the aesthetics of the property.

A third Arborist from a consulting company told the owner that the tree could recover from the broken leader, but it is a soft wooded, fast growing species, so the wound may not cover with callous wood before rot and fungus cause further damage to the structure of the tree over time. She told the owner to cut off the broken leader at the point of origin without cutting off any other canopy, and have the tree inspected every 6 months to be sure callous wood is growing to close over the wound properly.

What is a property owner to do with these professional opinions? Is one right or one wrong? Who knows best?

Each Arborist viewed the tree based on their experience, and the main services offered by their employer. The first was from a tree service, the second from a landscape contractor, the third from a consulting company. Each shows knowledge about the tree, a good approach to the problem with the tree, and a viable answer/opinion for the property owner to follow. Yes, the right answer can be any of the three. Being a property owner myself, I have had similar experiences with questions about my A/C unit, my roof, and my back fence. It is hard to find the same opinion, or plan of action, twice from professionals. The resolution for the subject tree rightly rests with the property owner in this example. It is their decision to decide which Arborist they want to work with further, and if you are one of these three, you should get their decision in writing before you start any tree work. Luckily in this example, the potential danger based on the tree size, location and condition are low whether it is restored or replaced.

For most trees we have inspected, this example is the average diversity of opinions between Arborists. This is the art of the science of Arboriculture. It is best to remember that being a property owner should always mean making the decision for your property.

Professional Arborists can be trained to inspect trees for conditions and risks, but it is experience that brings each Arborist to their final opinions about each tree. The answer given to a property owner does not need to match the opinion given by another Arborist, but it needs to be supported by your training, credentials, and experience. It is your opinion, and you are liable for it. If you are being paid for it, then write it down, sign and date it, and stand up for it when someone questions you about it. Your opinions are your livelihood, and how most Arborists sell their work or start a job. Helping property owners make informed decisions to improve their landscape is a great reason to be in the Green Industry. We all benefit from this goal as an industry because it means each of us is being a professional; even if we don't always agree.

John Harris, is a LANDSCAPE ECONOMIST who has worked in theArboriculture, Forestry, landscape and horticultural fields for over 20 years. Mr. Harris has provided reputable consulting, education and project management services for a wide variety of projects across the United States and internationally, in both temperate and tropical ecosystems.

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