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City Tree Injuries: City Aggressively Fights, but Victims Now Have a Fighting Chance

"Distasteful and unfair." This is the general consensus of many personal injury lawyers regarding injury cases filed against the City of New York. There are approximately 6,400 personal injury cases filed each year against the City; from slip and fall lawsuits to claims of deadly negligence.

Tree accidents, in particular, present an example of how the City aggressively approaches and defends personal injury cases. The City has been known to claim that pedestrians and park goers "should have known" the risks that trees present, and argued that the injured woman herself was at fault for failing to use unspecified "reasonable safety devises," when she was injured by a falling tree limb while sitting on a park bench.

The New York Times conducted an analysis of 10 lawsuits which have raised questions about whether more diligent tree care by the city may have prevented deaths and injuries. The suits revealed a haphazard system of tree inspection and maintenance, instances where slow responses contributed to accidents. This study also found that government (City) lawyers in implementing their courtroom strategies seemed to contradict their duty as government lawyers. According to several legal experts, the courtroom strategies used by the government lawyers were not illegal, or even unusual in the context of personal injury cases, and in many ways resembled the litigation tactics of big companies. However, government lawyers, ethically, are required more than business lawyers to seek fair outcomes.

Abbe R. Gluck, a former senior City lawyer who now teaches at Columbia Law School, stated that: "government lawyers have to make complex choices...they must protect public funds, but they also have an obligation to do justice, and that means they should not defend when they don't have a good claim and they should settle when appropriate." The City's aggressive strategies were also acknowledged by Leslie Kelmachter, a former City lawyer who is president of the New York State Trial Lawyers Association: "There is no question that when you litigate against the city, they push the envelope."

One court case, where a grandmother was killed by falling tree branches at a bus stop, the City tried to limit damages by claiming she did not suffer because brain tissue on the street suggested she was killed instantly. "It was all rather distasteful and unfair and plainly untrue," said the lawyer for the family. The City's argument was rejected by the jury, which awarded the family $350,000 for the last seconds of her suffering as part of a $2.95 million award (an appeals court later reduced it to $1.6 million). In a written response to questions, the City's Law Department argued the family initially brought up the issue of brain tissue by showing vomit on the street which suggested that she had survived long enough to suffer.

In another court case, the City fought for five years to avoid responsibility for a tree limb that crashed down at Stuyvesant Square Park in Manhattan, severely injuring a 29-year-old woman, which required a four month hospital stay. It was determined that parts of the limb had been so deteriorated, it was hollow. On the eve of trial, the City settled for four million dollars, but not without a long battle, and again tried to argue that the woman failed to use unspecified "reasonable safety devices" when sitting on the park bench. As its legal arguments were failing, the City was conducting secret video surveillance on the young woman. The tree was cut down as well, depriving tree experts from obtaining vital evidence proving the tree a deadly hazard. However, in doing so, the City left itself open to a claim of "spoliation of evidence".

The City aggressively defends all personal injury claims. However; a recent court ruling has provided opportunities for victims and their families to seek relief for serious or deadly injuries caused by the City's negligent tree maintenance. A New York Supreme Court judge held that the City of New York could be liable for a tree falling and injuring a driver on a City-owned road. Even though there was no evidence that any city employees had actual notice of a problem with the tree, that was twenty feet away from the road, the Court held that the jury could consider whether the city should have known that the tree was dead or decaying. Whalen v. City of New York, Supreme Court, New York County, Index No. 109957/05.

The Whalen case provides an opening to seek legal damages for personal injuries caused by falling City trees or limbs. To prevail in a lawsuit, the injured party must establish that the City knew, or should have known, about the decaying condition of the tree causing the injury. An experienced and knowledgeable personal injury lawyer knows how to navigate through the court system and minimize the City's advantage. Seeking their counsel is the best way to insure that the injured person's rights will be protected and that fair and just compensation will be obtained.

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Law Offices of Nussin S. Fogel
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