On a late summer afternoon, just months after the derecho, Bloch shows me how a trained arborist can diagnose a decaying tree. He takes what looks like a heavy hammer and points to an oak near the corner of River Road and 46th Street in Upper Northwest D.C. The tree’s root structure is clearly visible above the sidewalk, erupting in bulbous formations around the base.
Bloch strikes the root once, and the hammer’s spike goes right in, as if through papier-mâché. He taps it again and large chunks of the root collapse, with dust and chips falling into the ample hole that has opened up.
He feeds a plumber’s snake four feet into the hole before meeting resistance. That means there’s four feet of empty space at the base of an eight-story tree that Bloch estimates weighs 10 tons. “It’s not a matter of if this tree will fail, but when,” he says.
New technology exists to assess the health of tree trunks and their roots systems, but it’s not widely used in the area. Tony Mucciardi, an adjunct professor of plant science and landscape architecture at the University of Maryland, College Park, invented the Tree Radar Unit™, which he describes as a kind of MRI for trees. The device is sold primarily to research facilities and companies that assess large numbers of trees. The District of Columbia’s Urban Forestry Administration, responsible for maintaining street trees within the District, owns one, but Montgomery County does not.
“I don’t think [the device] would replace experience and education,” Montgomery County arborist Miller says of the $19,000 technology.
Still, assessing trees is a time-consuming and expensive process. That may be one reason that tree maintenance in the area is “sometimes haphazard,” Bloch says. The July death of Great Falls, Va., resident Albert Carl Roeth III from a falling tree on Georgetown Pike is an example. “Now there are 59 trees being taken down in that same area,” Bloch says. “If that accident hadn’t happened, no one would be doing that. This fatality might have been prevented.”
New York City recently responded to mounting pressure to improve tree maintenance after paying out millions in claims to families whose loved ones were killed or injured by city trees. One lawsuit cost the city $4 million, paid to a young woman who sustained permanent injuries from a falling tree in a Manhattan park. In July, the city doubled its annual tree pruning budget.
In Maryland, there’s a $200,000 cap on damages that individuals can recover from local governments, thanks to the Local Government Tort Claims Act (LGTCA). Sean Murray, whose wife and daughter died from that falling limb in 2009, is an attorney. He says the cap makes governmental entities essentially immune to lawsuits concerning falling trees. “Because of the severe liability limitations in the law, they are untouchable,” he says. “If the damage caps were higher, their attention to their duty would be significantly higher.”
Michelle Humanick’s husband, Clay Gump, a network engineer, didn’t pursue legal action after his wife’s death because “it is not going to bring [Michelle] back.” Gump is focused instead on raising the couple’s two daughters, now 3 and 6. But the tree that hit his wife’s car clearly was decayed, he says. “You could see where the stump was rotted away on the inside.”
Patricia Via, chief of the Division of Litigation in the Montgomery County Attorney’s Office, notes that “the cap is there to ensure there are funds to respond to a multitude of claims that might be filed against employees, and to ensure there is money to pay many claims, if necessary, rather than a few large claims.” But “the cap should not deter people from filing a lawsuit if they think they have been wronged,” she says.
Cary Hansel, a partner in Joseph, Greenwald & Laake specializing in civil rights, believes that the liability cap diminishes citizens’ and lawyers’ abilities to act as watchdogs with respect to local government. “Two or three fair verdicts that reasonably compensated people for the loss of their loved ones, and you would save probably 100 lives,” he says.
Nine lawsuits involving tree failures have been filed against Montgomery County in the last four years. Two—a personal injury case and a fatality—were settled out of court. Of the remaining seven, two were decided in the county’s favor; two were dismissed; one changed jurisdiction; and two were still in the courts at press time. Bloch, who has testified more than two dozen times in Maryland, says that 95 percent of such suits are settled out of court.
After my niece and I were injured at that Montgomery County pool, my brother and I approached the county about reimbursement for our medical bills. It took months for us to get an answer about who was responsible for the tree that struck us. Although its branches overhung the pool, the tree was rooted a few feet outside the pool fence.
Ultimately we were told that the Montgomery County Park and Planning Commission was responsible. But when I asked for a copy of the pool’s tree-trimming records, a claims manager at Montgomery County Risk Management told me they didn’t keep any. And because no one had specifically asked that the tree be inspected, the accident was considered an act of God.
In the end, our request for reimbursement was denied and we dropped the issue, grateful not to have been more seriously injured.
When I returned to the pool with Bloch two years later, little had changed. As we strolled around the pool deck, Bloch pointed out several trees with no foliage on their branches—a likely sign of decay for a tree in August. Several decaying limbs hung over the pool grounds where patrons lounged, just as they had when my niece and I lay there two years earlier.
Meghan Gibbons is a speechwriter who lives in Chevy Chase, D.C.
