Ontario Superior Court of Justice. Goderich Small Claims Court. Matthew Gascho. and. The Corporation of the Town of Clinton. Reasons for Judgment

Transcription

1 Ontario Superior Court of Justice Claim Number Between: Goderich Small Claims Court Matthew Gascho and The Corporation of the Town of Clinton Plaintiff Defendant Counsel: Background: Philip B. Cornish, for the Plaintiff Michael J. Donnelly, for the Defendant Reasons for Judgment On June 14, 1999, Jennifer Gascho did what many people throughout Ontario do on a daily basis - she parked her now-husband's car in a legal parking spot which happened to have an overhanging tree limb. What made her situation unusual was that sometime during the next 45 minutes, that overhanging tree limb came down onto the Plaintiff's parked car, causing substantial damage to the vehicle. The tree limb in question was the responsibility of the Corporation of the Town of Clinton, the Defendant municipality. Issues: (1) Liability: The question for this Court to determine is: Who is responsible for paying for the damage to the vehicle in question - the Plaintiff or the Defendant? It took 3 days for all of the evidence and oral argument from the parties' lawyers to be presented. (2) Damages: Regardless of who is liable, the amount of damages is also in dispute. Facts: The maple tree limb that fell onto the Plaintiff's 1984 Fiero was 12 to 14 inches in diameter, was 70 feet or longer in length and, according to Mr. Frederick Thomas who is an expert on trees, probably weighed 2000 to 3000 pounds.

2 2 No one saw the tree limb fall. Ms. Gascho testified that there may have been a light breeze blowing when she parked the car. She also testified that she was not aware of any gusts of wind. But she candidly admitted that she does not know what the weather was doing when the limb came down onto the car, since she was inside a building and her office did not have any windows in it. The only other two witnesses who were able to testify about events at or around the time that the limb fell were Steven Gibbings, the Defendant's Utilities Department Foreman on the day in question, and Frederick Thomas, a tree inspector and cutter. Mr. Gibbings testified that June 14, 1999 was a nice, normal summer day. But he further testified that a brief windy rain storm came through Clinton at about the time that the tree limb fell, causing numerous branches to fall from trees. Mr. Gibbings was not aware of any other tree limb the size of the one that fell onto the Plaintiff's Fiero coming down in the Town of Clinton on June 14, Mr. Gibbings further testified that he did not have any evidence that wind or weather caused the tree limb to fall. Mr. Thomas testified that he was working in another part of the Town of Clinton on June 14, He recalls quite a burst of wind at around 10 am. He thought the wind had something to do with the limb coming down. But he was not at the scene when it came down. Neither party has introduced any weather records for June 14, 1999 into evidence at this trial. Mr. Gibbings testified that tree maintenance in the Town of Clinton was the joint responsibility of the Utilities Department Foreman and the Public Works Department Foreman until April 1999, after which it became the sole responsibility of the Utilities Department Foreman (who was Mr. Gibbings at the time in question). Mr. Gibbings described how the tree maintenance was done by the Defendant. He said that the Defendant did not have any written policy regarding tree inspection. He testified that there are Ontario Provincial Standards prescribed by the Ontario Government to act as guidelines. But he could not tell the Court what they were. Mr. Gibbings said that normally a list called a "Tree List" was prepared each year which showed the trees to be removed and the trees that needed pruning. He described an annual inspection being done in the Defendant municipality in the fall of each year. This inspection was normally done by himself and by Mr. Frederick Thomas, who was the owner of Southwestern Tree Service. The two of them would normally drive around the Town of Clinton looking at the trees for which the Defendant was responsible. Mr. Gibbings stated that he was just looking for the very obvious cases in the "drive-by" inspections. As a result of the annual inspections, trees were added to the "Tree List" that required either cutting or pruning. If any of the staff of either the Utilities Department or the Public Works Department saw a problem with a tree, that person could add the tree to the "Tree List." In addition, if one of the Defendant's ratepayers brought a concern about a tree to the attention of either the Utilities Department or the Public Works Department, that tree was also added to the "Tree List."

3 3 The Tree Lists for , and were filed as Exhibits 14, 11 and 15 respectively in this trial. There is nothing in the evidence that indicates conclusively whether the subject maple tree was on any of these Tree Lists. The tree from which the limb fell on June 14, 1999 has been described as a maple tree that started out with a single trunk for the first 20 to 25 feet. At that point there was a crotch in the tree from which 2 separate trunks grew upwards. For ease of reference, I will describe the trunk from which the limb fell on June 14, 1999 as the "front trunk" and the other one as the "rear trunk." The limb broke off on the front trunk 10 to 12 feet above the crotch. The rear trunk was 70 to 80 feet tall. Mr. Joseph Gibson was qualified by the Plaintiff as an expert to give evidence on the health of trees and tree management practices. Mr. Gibson made his observations of the tree in question through the use of photographs, some of which were taken on behalf of the Plaintiff and some of which were taken on behalf of the Defendant. Mr. Gibson never saw the actual tree in person. Mr. Frederick Thomas, an expert in tree inspection and maintenance, was called as an expert witness by the Defendant. His company has also been on retainer to the Defendant continuously for the last 20 years. Mr. Thomas never saw the subject tree on June 14, 1999, or in the next few days which followed. Except in the same photographs that Mr. Gibson saw, Mr. Thomas never saw the limb that actually came down. However, Mr. Thomas was the one who cut down the remainder of the subject tree in August Exhibits 8, 9, 17A and 17B are photographs of the subject tree as Mr. Thomas saw it in August Law: Starting in 1926, there have been several cases dealing with the issue of liability when all or part of a tree has fallen down. The Ontario Court of Appeal, in Huestis v. City of Toronto, [1926] 3. D.L.R. 142, found the municipality liable when a tree was in a decaying condition which was could have been easily ascertained by city employees. In C.K.O.Y Limited v. The City of Ottawa, [1952] O.W.N. 367, the Court found that the municipality was not liable because there was no evidence that even a minute inspection would have revealed the actual condition of the tree. The condition of the tree was not discoverable until after the limb fell. The Court found that the test was ordinary prudence and whether the municipality took reasonable steps. In Bottoni v. Henderson (1978), 21 O.R. (2d) 369, the Court found that the tree appeared normal to everyone and that there had been nothing to warn the Defendant of any danger or decay prior to the accident. In ruling that it was not a case of strict liability, the Court found that the owner of the tree was not liable.

4 4 The Ontario Court of Justice (General Division) considered the issue in 1996 in the case of Kelley v. Town of Ingersoll, [1996] O.J In that case, the subject tree was partly on town property and partly on private property. The tree expert who testified at the trial never saw the actual tree, but was relying on photographs and the transcript of the examination for discovery of the town engineer. After the branch fell, it became apparent that the tree was diseased and most of the core of the trunk had rotted out. The tree expert said that a drive-by inspection would have indicated to a knowledgeable inspector that the tree was a potential hazard. The tree expert was critical of the municipality's inspection program as it was not regularly scheduled and there was no systematic documentation of the inspections. The Court looked at the photographs and said that they clearly showed signs of deterioration. The Court found that the tree was a danger to the public and that the danger could have been easily discovered by a proper inspection. Accordingly, the Court found both the municipality and the private land owner liable. In its reasons in Kelley v. Town of Ingersoll, supra., the Court said "I am satisfied, however, that the duty of care owed by the Municipality is not the same as the duty of care owed by [the private land owners]. [The private land owners] were only expected to maintain their property and the tree located on that property. The Municipality was responsible for the inspection and maintenance of hundreds of trees located on public property and it cannot be held to the same standard of care as [the private land owners]." The Court then found the private land owners 65 % to blame and the Municipality 35 % at fault. The Ontario Court of Justice (General Division) again considered the issue in 1996 in Doucette v. Parent, [1996] O.J In that case, the tree broke off because of internal decay. There was a windstorm at the time of the accident, but there was nothing unusual about it. The Defendant did not have any knowledge of any rot or instability of the tree. The rot in the trunk was not evident on the outside. There was nothing to warn a reasonable tree owner of any danger, and therefore, the tree owner was found not liable. The Court stated liability in negligence should be found against an owner of a tree in circumstances where a reasonable person, on viewing or inspecting the exterior of the tree, would conclude that the tree is in need of expert attention. As recently as 2000, the Ontario Superior Court of Justice has considered the issue. In Ontario Ltd. v. City of Windsor, [2000] O.J. 1804, the Court found that the Plaintiff failed to prove on the balance of probabilities that the Defendant was negligent. After the tree fell, it was evident that there was rot in the core of the tree. But prior to the tree falling, there was no visible sign of decay on the tree. In fact, the evidence was that the tree appeared healthy. The Court found that the fact of the tree falling was not sufficient to shift the burden of proof to the Defendant. Analysis: Limbs don't fall from trees without a reason. However, the owner of the tree (in this case, the Defendant) cannot be held responsible for damage that results from the limb falling simply because a limb or tree falls. For liability to result, there must be negligence on the part of the owner of the tree. The Plaintiff has the obligation to prove that the Defendant knew or ought to have known that the tree in question was a danger.

5 5 There may have been a windstorm at the time that the subject limb fell. But I don't find anything unusual about it. While wind may have assisted the limb to fall at the time that it did, the primary reason that the subject limb fell was because, as Mr. Gibbings, Mr. Thomas and Mr. Gibson testified, there was decay in the area of the break. This decay was in both the limb which fell and in that portion of the front trunk which was left standing. Because this decay was inside the bark, the question to be answered is whether there was anything prior to the accident that acted as a warning to the Defendant that the subject maple tree was a danger. From the evidence of Mr. Thomas and Mr. Gibson, I find that the following are indicators of the health of a maple tree: 1) holes in the tree; 2) discolouration of leaves; 3) dead limbs; 4) cracks or splits in the tree, including coppice growth (which is more than one stem growing from the trunk); 5) different colours of bark or bark off the tree; 6) discolouring of burrs (or wounds) where a limb has previously been severed. Now let us consider each of those indicators in light of the facts of the case before this Court. We must remember that neither Mr. Gibson nor Mr. Thomas saw the fallen limb at any time. However, both of them saw the photographs which are before this Court. Holes in the Tree: I did not hear any evidence of any holes in the subject tree. Discolouration of Leaves: Mr. Gibson testified that the leaves above the break on the fallen limb were probably discoloured, giving the leaves an unhealthy look. However, there is no evidence of this. In fact, when Mr. Gibbings arrived at the scene of the fallen limb on June 14, 1999, he stated that he noticed that the leaves on the fallen branch were in full bloom. He did not notice any indication of discoloration on that branch and, to his recollection, there were no branches that were without leaf. One might want to speculate on how carefully Mr. Gibbings looked at the fallen limb, given the fact that his job was to have the mess cleaned up and the road re-opened as quickly as possible. However, I am not prepared to find that any of the leaves on the fallen limb were discoloured. On the day that he cut the remainder of the subject tree down in August, Mr. Thomas observed that it was in full leaf, that the leaves were a dark green (a very good colour) and were very healthy

6 6 Dead Limbs: Mr. Gibson testified that there were probably some dead limbs in the tree. But no one testified that there actually were any dead limbs in the tree in June or in August On the day that he cut down the remainder of the subject tree down, Mr. Thomas did not see any dead wood on the remaining portion of the tree; Mr. Gibbings testified that he did not know if limbs had earlier been cut off the limb that fell. Mr. Thomas testified that at least 2 or 3 limbs had been cut from the subject tree prior to June But he did not know when the last time was that the subject tree had been trimmed. It is quite possible that if the subject tree had been trimmed in the years leading up to 1999, the dead wood that would otherwise have alerted everyone to problems with the tree would not be apparent. I found the Defendant's record-keeping of what was done when to what trees to be below what I believe the standard should be for a municipality. In my opinion, the Tree Reports should have had much more information in them than what was recorded. However, while I am suspicious that dead limbs that otherwise would have provided warning signs to the Defendant were cut from the tree on earlier occasions, I am not prepared to find that as a fact. Cracks/Splits/Coppice Growth: There was no evidence presented which would indicate a crack or a split in the tree. The subject tree had what is called a "coppice growth." This occurs when more than one stem is growing from the trunk of the tree. Mr. Gibson testified that the coppice growth would allow a greater chance for moisture to get into the tree in that area and therefore cause the tree to decay or rot faster. Mr. Gibbings testified that the crotch of the subject tree was inspected in April 1999 by using a bucket truck, and that no rot was discovered. On the day that he cut the subject tree down, Mr. Thomas did not find any decay in the crotch of the tree when he cut it up. In fact, Mr. Thomas said that he only discovered two areas of decay in that portion of the tree that remained for cutting in August Those two areas were in the area of the break and in the area of the burr which was on the front trunk approximately 5 or 6 feet above the crotch and 5 or 6 feet below the break. Thus, it appears that the coppice growth in this tree was not a factor in the limb falling.

7 7 Bark: According to both expert witnesses who testified, the bark of the tree can give an indication of a problem with the tree in two different ways. One way is if the tree has lost some of its bark. There was no indication of that in this case. The second way of using bark as an indicator is to see if there is any discolouration. Mr. Gibbings testified that he did not see any discolouration in the bark of the subject tree. But that evidence differs from what Mr. Gibson told the Court. Mr. Gibbings' evidence was also contradicted by Mr. Thomas in cross-examination. Therefore, one wonders how carefully Mr. Gibbings examined the subject tree. Initially in his evidence, Mr. Thomas testified that there was no discolouration in any of the bark which remained and that there was nothing unusual about the bark from the ground to the break. He said that the only discolouration that he saw in the tree was in the area of the burr on the front trunk which was approximately mid-way between the crotch and the break. However, under crossexamination, Mr. Thomas admitted that he could see different colours in the bark in the photographs filed as Exhibits 9 and 17A, which are photographs of the subject tree taken August 4, Mr. Gibson testified that some of the bark on the tree in the photos was a different colour from the rest of the tree's bark. While this was not evident in Exhibit 3 (which is a photograph of the subject tree taken from a distance), Mr. Gibson testified that it is evident in Exhibit 7 (which is a close-up photograph of the same tree). From my own observation of Exhibit 7, I would concur with Mr. Gibson. Mr. Gibson testified that this discolouration in the bark should have been a warning that there was a problem with this particular tree. Burr: The only burr that was referred to in the evidence was the one already mentioned which was on the front trunk approximately mid-way between the crotch and the break. On the day that he cut the subject tree down, Mr. Thomas observed this burr which was a large dark area. He assumed that it was a pruning scar. He testified that there was decay in this burr, but that it was not deep enough to cause him any concern. Mr. Thomas does not believe that this wound weakened the subject tree. On the other hand, Mr. Gibson testified that such a large dark burr would cause him concern. He believed that the discoloured burr would weaken the front trunk. I am left with having to weigh the evidence of two expert witnesses, each of whom is well qualified in the areas to which they testified. Mr. Gibbings' qualifications paled in comparison to the qualifications of Mr. Gibson and Mr. Thomas. I also question Mr. Gibbings' recollection of some of the events. In his evidence, he said that on June 15, 1999 he inspected the remainder of the tree that was left standing with Mr. Thomas. However, Mr. Thomas testified that he never saw the subject tree on June 15, 1999.

8 8 Mr. Thomas testified that, while he inspected all of the trees in the Town of Clinton at some point prior to June 14, 1999, he could not tell the Court when he specifically inspected the subject tree. He recalled looking at the subject tree several times during the 5 years prior to June 14, His looking at the subject tree included getting out of his vehicle and looking at the tree. But he could not say what he specifically did to inspect the subject tree. While Mr. Thomas does remember looking at the large scar on the burr earlier, and while he was not concerned about it because he did not think it was deep enough, he did not measure how deep it was until he cut the tree down. As I have already said, Mr. Gibbings testified that the crotch of the subject tree was inspected in April 1999 by using a bucket truck, and that no rot was discovered. But Mr. Gibbings does not give any further details of the inspection or what caused him to inspect the tree more closely. In fact, Mr. Gibbings testified that an aerial inspection from a bucket truck would only be done of trees that were suspect trees. Why was this tree inspected in April 1999? The Court was not told. The records produced by the Defendant do not say. When he attended at the site in August 1999, Mr. Thomas did not notice anything in the area of the break that would indicate that the subject tree was decayed. Mr. Thomas went on to say that there was nothing on the exterior of the tree that would indicate rot or decay on the interior. But Mr. Gibson testified that the discolouration of the bark and the large dark burr on the subject tree were clues as to problems with the tree. As a result of these clues, Mr. Gibson stated that he would probably have recommended an aerial inspection of the tree with a bucket truck (or at least a ladder.) He testified that one could have checked for rot inside the burr. I was impressed with the forthrightness of Mr. Gibson during his testimony. While he was retained by the Plaintiff as an expert witness, he has nothing to gain from the outcome of this case. Contrast that with the position that Mr. Thomas is in. Because of his relationship with the Defendant, he is not completely independent or impartial. In fact, for the past 20 years, Mr. Thomas has had some responsibility for inspecting, trimming and cutting trees for the Defendant. Having heard and considered all of the evidence, I rule out holes, leaf discolouration, dead limbs, cracks, splits, coppice growth and the loss of bark as providing any warning signs to the Defendant that the subject tree was a danger. Was there anything else to warn a reasonable tree owner of any danger with the subject maple tree? I find that there were some warning signs. Based on the evidence that this Court has heard, the Defendant should not be able to say that the subject tree appeared healthy. While there was no visible sign of decay in the subject tree, the discolouration of the bark and the discolouration and size of the burr should have provided sufficient warning signs to the Defendant that the subject tree was a danger. After considering and weighing all of the evidence presented in this trial, the Court concludes that a drive-by inspection should have indicated to a knowledgeable inspector that the tree was a potential hazard and in need of a closer inspection.

9 9 A closer inspection would have concluded that the subject tree was in need of expert attention. Liability in negligence should be found against an owner of a tree in circumstances where a reasonable person, on viewing or inspecting the exterior of the tree, would conclude that the tree is in need of expert attention. Thus, the Court finds that the Defendant did not meet the necessary standard of care even for a municipality (assuming that one accepts the statement in Kelley v. Town of Ingersoll, supra., that the standard of care for a municipality is lower than for a private land owner). Accordingly, the Defendant is liable for the damages suffered by the Plaintiff. Damages: The Plaintiff is claiming damages in the total amount of $ 4, together with interest and costs. The $ 4, is divided into 2 parts, being $ 3, for his Fiero and $ 1, for towing and storage of the motor vehicle. Dealing first with the car itself, at the time that the Plaintiff purchased the 1984 Fiero in approximately 1997 for $ 1,500.00, it had 120,000 kilometres on it. The body of the Fiero is made of fibreglass. The Plaintiff had the engine re-built, put new tires and rims on the car and had the body painted. Much of the work was done by the Plaintiff himself. By June 1999, the car had approximately 180,000 kilometres on it. The Plaintiff testified that, in addition to the original purchase price of $ 1, and his own labour, he had paid $ 1, for parts. He further testified that immediately prior to the accident on June 14, 1999, his Fiero was in excellent condition. He stated that if he had advertised the car for sale, he would not have had any problem selling it for $ 3, Exhibits 1 and 2 are photographs of the Plaintiff's Fiero with parts of the subject limb on and around the car. According to the Plaintiff, his car is not repairable. I have no reason to disbelieve him. I also find that the car was worth $ 3, immediately before the tree limb fell on it. However, the Plaintiff admitted that he has not salvaged anything from the vehicle. He still has the Fiero in his possession. By looking at Exhibit 2 in particular, it appears to me that the left 2 tires and rims at least are not damaged. I cannot comment on the rights tires and rims, since I do not have any photographs or other evidence showing their condition. I find that there should be some deduction for parts that the Plaintiff can or should have salvaged from his car. Dealing next with the towing and storage bill, being Exhibit 10, the towing portion of the bill is $ and should be allowed in full. According to Exhibit 10, the car was stored from June 14, 1999 to November 8, 1999, being a total of 148 days. The amount being charged was $ 6.00 per day. Thus, the total storage charge being claimed is $ On November 8, 1999, the Plaintiff had the car moved to another location which was and is in the control of the Plaintiff and does not cost him any money.

10 10 The Plaintiff admitted under cross-examination that no one on behalf of the Defendant ever expressed an interest in the car. He further admitted that he knew that the car would not be repaired. Thus, I find that the Defendant should have stopped the storage charges from accumulating much sooner than he did. I therefore assess the Plaintiff's damages as follows: a) damage to the car $ 3, less salvageable parts net damage to the car $ 2, b) towing charges $ c) storage charges - 45 $ 6.00 per day $ Conclusion: Total Damages $ 3, There will be judgment in favour of the Plaintiff against the Defendant for $ 3,225.00, together with pre-judgment interest which I am fixing in the amount of $ Costs: At the conclusion of the final submissions by counsel, I indicated that I would give each party an opportunity to address the issue of costs after the Court's decision had been released. If the parties are unable to agree on the costs within 21 days, they may make arrangements with the Court Clerk for either a telephone conference call or a court date at which time I will hear submissions on the issue of costs. Dated at Goderich, Ontario September 29, Norman B. Pickell, Deputy Judge