City Tree Fell on My Car, City won't pay, is city at fault?

[You Are Guilty]

Seems pretty clear to me that the city holds liability in this. The property owner cannot legally TOUCH the tree, and I found no ordinance that mandates the property owner inspect and advise the city if the tree grows weak. I'd think that even without an arborist report, the OP will likely prevail in a small claims action.

While small claims is the Wild West of the legal world, even the judges there tend to try to follow the law just a little bit more when the City is a defendant. And either actual notice (http://articles.latimes.com/2001/jul/22/realestate/re-25238) or constructive notice (what the arborist report would be, see http://www.good2golawncare.com/Borers_of_Trees.html for why) is still required under the law.

Cities pay out on liability for people who trip in a cracked sidewalk, I cannot imagine that their tree breaking and landing on a car is any different. I suspect they will pay if push comes to shove ... they just need to be shoved. The $2,200 is far cheaper than paying a city attorney to try and fight it.

That depends. Most cities have "in house" counsel - attorneys on staff who are salaried. These lawyers are paid the same whether they are behind their desk or in a courtroom. There is no extra money spent to fight lawsuits with these lawyers. On the other hand, if the city is too small to have staff counsel and pays people hourly, then it's possible if it becomes a war of attrition.

 

[michaerlscai]

Thanks for the links, now I just need to find an arborist..although the remainder of the tree seem healthy, so not sure if they can give me a report just based on the photos. I think the evidence are slowly coming together.

 

[CdwJava]

While they may have "in house counsel" there is still a cost to those folks, and it IS part of the equation. I have been active in city government for over 2 decades and am well aware that cities do very often pay out on these sort of matters - some easier than others. Yes, they will make the claimant jump through all the hoops they can in the hope they might go away, but in the end many cities will pay out because it is still cheaper. Whether Monterey Park will do so, or whether they will fight it or not has yet to be seen. The OP has little to lose but time and a filing fee by filing in Small Claims Court. However, if he spends a few hundred dollars on an arborist to conduct an evaluation of the tree, he also risks losing THAT amount as well. Heck, he may not be able to recover the cost of the arborist in his claim! Hence my suggestion to file and pursue it even without the report from a tree specialist.

Settlements are most often an economic decision, not a matter of whether you can win or lose. Even in-house counsel costs you money, and cities do take that time factor into consideration. I can cite numerous cases where cities would have prevailed at trial but chose, instead, to settle out of court - sometimes for 6 figures - simply to avoid the expenses (and in serious matters, the bad PR) of a trial. Plus, many cities have budgets to cover such lawsuits as they expect to pay out on a few. One risk Management consultant cited statistics that showed that cities prevailed in more than 90% of those claims that went to trial in a suit, but I believe it was about 5% of claims that even went as far as a trial.

 

[You Are Guilty]

I'm not saying they will or won't settle here. Merely listing the legal requirements for the cause of action.

But I am curious as to why sending an in-house attorney to sit in a small claims part for a few hours would cost more than sending that same attorney someplace else. Do they get hazard pay out there?

 

[CdwJava]

I'm not saying they will or won't settle here. Merely listing the legal requirements for the cause of action.

But I am curious as to why sending an in-house attorney to sit in a small claims part for a few hours would cost more than sending that same attorney someplace else. Do they get hazard pay out there?

Didn't say they'd get paid MORE, just that it is a cost that is taken into account. That is IF Monterey Park has an attorney who is assigned to go to court for such matters. Many cities have contract counsel for such things. But, the time that attorney spends preparing for trial and attending trial still has a cost associated with it. Instead of performing his or her other functions, he will have to expend the hours preparing for and fighting THIS case. Those hours (and the costs associated with those hours in wages, benefits, and lost productivity on other matters) is lost. Unless the city has an attorney assigned simply to fight small claims cases and that IS their function (and I don't know of a moderate sized city in CA city who as an assistant city attorney assigned to this), they will have to be taken away from some other action.

 

[ecmst12]

Considering a risk management analyst already reviewed this case and denied the claim, I suspect they think it's worth defending against in court.

 

[CdwJava]

Considering a risk management analyst already reviewed this case and denied the claim, I suspect they think it's worth defending against in court.

I've seen that before ... they deny, deny, and deny ... then, they settle when they are served or on the court date. Maybe that won't happen, but it happens frequently enough that it might be worth the OP's time and filing fee to give it a go. He loses only the filing fee and, maybe, four hours at court to try.

The best way to manage risk is to deny it and hope the other party walks away! One does not manage risk very well if they pay off on every demand they receive.

 

[michaerlscai]

If I try to settle with the city after I file the case with small claims court, should I try to convince the city by providing all the details of my argument? or would it help them to prepare their case thus put me in a disadvantageous position in court?

 

[ecmst12]

Find out how much it will cost you to get an arborist to testify for you in court. That should put an end to your questions.

 

[michaerlscai]

I don't think i can afford to have an arborist to testify for me on court, since the claim amount is not a lot and I will still have to pay the arborist if i lose.

My question is how much detail should i let out to the city before court date. do I want to tell them everything which will help to convince them but may weaken my case?

 

[You Are Guilty]

Your question is one of strategy and not something I would answer from the other side of the country. However, I will tell you that in small claims, you can probably get away with submitting the arborist's report, as opposed to paying them to appear in court. (If they will prepare a "sworn" report, even better). You may want to check on that pricing after all.

 

[ecmst12]

I think that's still going to cost at least a couple hundred.

 

[Willlyjo]

Thanks for the links, now I just need to find an arborist..although the remainder of the tree seem healthy, so not sure if they can give me a report just based on the photos. I think the evidence are slowly coming together.

The difference between prevailing in your claim or not may depend on a little investigating on your part. For instance, how often does the city trim its trees? If you can show that the city at one time trimmed trees throughout the city and then they got a bit lazy about it, you may prevail. Also, if you can show that the tree the branch fell from has other branches that may appear to be rotting or even growing in a fashion that could allow the court to forsee that a branch could fall, you might be able to convince the court to rule in your favor and compensate you for your loss.

I actually witnessed the aftermath of a gigantic tree that fell on a house just up the street from me. There had been a few days of torrential rainfall an the moisture loosened up the ground and the tree simply tipped over. The owner of the house (an elderly man) just went to bed and the tree wiped out his entire living room. The city ended up fixing his house. Not saying your city will do the same, but it is worth a try. Good luck!

 

[michaerlscai]

Just an update..

OK, I finally filed a small claims court claim against the city couple of weeks ago, the city called me and offered to settle. They will pay me my original claim amount to settle the case.

Thanks for all the advice, it's all good now..

*V*I*C*T*O*R*Y!

 

[CdwJava]

That's what I figured would happen. Congrats!