An old question of ethics

wulkowicz

wulkowicz

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I came across an old post I put on Russ Carlson's Tree-Tech Forum

<Bob Wulkowicz>
Posted Sunday December 13, 1998 12:21 PM

A tree comes down in a storm killing a person walking by. The tree was worked on by a certified arborist four months earlier. The arborist was paid a fee and did not tell the owners of any tree problems, physiological or structural. The victim's family sues the homeowner. The homeowner sues the arborist. The victim's lawyer sue the arborist as well.

The fault is the arborist's, they both say, who represented himself as an expert and had credentials and various trade association memberships to validate the quality of his work. The arborist was responsible for not informing the owner of the condition of the tree and thereby denying the owner of an expert opinion on the safety of the tree which might have then been removed before the storm.

Since the homeowner had an expert in his employ before the accident, the expert did not give notice of hazard as was his duty to the client. While the storm may have been an act of God, both parties argue against the arborist that his intervention placed him in a direct line as a link in the chain of liability.

The arborist argued that he only did some pruning; the other sides argue he should have known based on his experience and represented competence. The arborist has $100,000 in liability coverage.

What decides the outcome? The facts? The professional duty? The presence of an insurance policy?


Bob Wulkowicz


PS: In the interests of transparency and background, the original thread is at http://tree-tech.com/eve/forums/a/tpc/f/283602391/m/877609002 , but I'd like to continue the discussion here since we've had some dozen additional years to consider issues of ethics and the pursuit of "professionalism".
 
This is a no-brainer.

The outcome will likely be decided by the emotional rationalizations of the Jury whom shall be influenced through demagoguery by both the plaintiff's and defendant's lawyers.

Ultimately the jury will likely feel "sorry for the loss" sustained by the family of the decedent and find in favor of the plaintiff.

It will be "nobody's fault" really, but someone ought to pay for these peoples "loss." And the arborist really won't be to blame, but since his insurance company has lots of money they can part with some of it. Consequently the Jury will put it to the evil insurance company through finding the arborist liable.

This is the way it is, not necessarily the way it is supposed to be.
 
I believe that if we label ourselves 'professional,' we ought to be professional! I went back and read the original thread. Later in the thread someone pointed out that the tree had been topped; that alone should have alerted the arborist of a potential hazard at some point in this tree's life. He could have stated on the invoice the potential for failure resulting from the weakened limb status due to previous topping. As professionals, we are paid to notice these things in trees that we perform our duties in.

As Certified Arborists, Board Certified Master Arborists, Arborists, Registered Consulting Arborists, 'Professional Arborists', etc., we are professionals and are labeling ourselves as such. Somehow we have to differentiate ourselves from the "have chainsaw, pickup and will travel" camp. If we are not professionals, then I am assuming we are in the other camp. Professionals carry insurance - this is why we, as professionals, have a liability policy.

While we cannot predict every failure in every tree; we can inform our clients of defects and the risk of failure in every tree from winds, lightening - acts of nature. It is our responsibility to inform the client of defects....the arborist in question must have noticed that the tree had been topped. Therefore, he should have informed the client of the hazards of topped trees.

In our company, we have made it a practice to photograph 99% of the trees that we observe, prune, cable and such. We do inform our clients that although the tree appears healthy - all trees have the potential of failure - that our work today has helped to improve the integrity of the tree - it is, after all, a living specimen and is subject to failure just as humans are. We inform the client that the opinion has been given to the best of our ability and we offer second opinions. We require the client's signature and keep these records indefinitely in a Computer file.

We do, however, state that an evaluation is only given for the trees that we have been asked to observe, prune, treat, etc.

This does not prevent clients from attempting to sue, but it does put some of the liability back on the client. They are then 'informed clients.'

As professionals, we must step up and accept the responsibility of that title. A physician is a professional, he carries insurance, but that does not stop him from sue-happy clients - he must accept the responsibility of his title. So must we, as we attain new credentials, certifications, education, degrees and such. For all of the above does make us more liable, but also makes us more 'professional.'

We, as a trade, are seeking more recognition, more education, more certifications, etc. - there is always a price for each advancement. Each arborist must ask himself if he or she is willing to take on this responsibility!
 
Vicgartree, you make an important point that it needs to be in writing and kept in the records. Otherwise no warning can be proven. This may be something that companies should prepare a form on which to report such observations. Seems like every client would have something to report and have signed off. This could be done at the time of closing up the job, along with a signed contract that accepts satisfactory work having been done and completion of the project.

May seem like an extra hassle, but so is theft from Identity Theft. Seems like a hassle up front, and it is, but very minor compared to the hassle on the back end.
 
Anyone can sue another person for anything, so a company has a fiduciary responsibility to find protection against that happening. One of the reasons i went with West Bend is my agent Eric Petersen made them put an Errors and Omissions clause in the policy. WBI will go to court with me if I get sued.

IMO we have a responsibility to generate work, so an arborist of any stripe should point out work that needs to be done, leaving the HO the responsibility to make the decision. If it is a hazard level defect, then we should stop work to offer risk mitigation options to the client.

If you see a problem and do not bring it to the clients attention, with a price attached, you are cheating the company.
 
I just recently got my tree risk assessor certification, so let me see if I can take a crack at it from a legal liability perspective:

-The land owner has clearly met their obligation to perform due diligence in mitigating hazards posed by the tree by hiring the certified arborist. In most circumstances, even if they had not hired the arborist they would not be liable unless the tree was an obvious hazard that a person with no training could identify (dead, covered with conks, slowly tipping over, etc). Basically if they KNEW it was a hazard and chose not to mitigate, they could be liable.

-The arborist is held to a higher standard. If he saw signs which are within the scope of his training to identify that the tree could be hazardous, and then did not inform the land owner he would likely be liable.

Much of the outcome would likely be dependent on the questions of how did the tree fail, and was this failure foreseeable?

If the tree was healthy, structurally sound, undisturbed by recent activity and a generally safe species which fell apart because of the intensity of the storm or just because it felt like it then neither the arborist or land owner is liable. If there were indications that the tree was hazardous before the storm, then the arborist would likely be liable if he did not report these.

This could even apply to a tree next to the one he was pruning. Was that Alder obviously dead and leaning towards the house when you pruned the oak? You ARE obligated to tell the person responsible, even if it's not the tree you're working on.

Usually I try to have these conversations in person and then follow up with an email so there is a paper trail that shows that you fulfilled your obligation.
 
..... is a $!00,000 policy enough coverage ? I'm thinking not ...$1,000,000 for residential work ... I like carrying 2,000,000 in case I wind up subbing on something commercial or industrial .... I still think it was not the arborist's fault that the tree failed and injury or death resulted ....
 
What you've said John is bang on. Too often workers are too anxious to get on to the next job or get home. They lose sight of the fiduciary duty we have to the client and the exposure to liability that being a "professional" carries.

When we walk on to a property we'll take a look around for anything that stands out as a potential hazard. We'll also limit our opinion so the client understands that the opinion offered is limited.

In this case, I'd say he has some liability if the cause of the failure was something that he should, as a professional, been able to detect. If the failure was hidden from the level of inspection that would be performed within the scope of the work contracted for then he may not have any liability if such inspection was conducted.

Not cut and dry. He'll need a damn good lawyer!
 
To me it seems like a hard thing to prove. Did he overlook a serious defect, or was it a hidden defect not visible at the time of pruning. Either way it seems like all invoices need some sort of disclaimer against "hidden defects".
 
In Bob's case it is a hypothetical failure that should be obviously increasing risk of failure for a skilled tree worker. The idea is that there is an implicit contract when a professional is hired to preform a task; which is as it should be since we kvetch when we see the HO's butchering their own property.

The fiduciary responsibility I speak of is to the company, whether we run it, or work for it we should be trying to generate more business for it at every opportunity. The fact that it is a little CYA is icing in the cake. Even though i am a sub' I will always tell the HO that my client does other work and give a few suggestions "would you like Jerry Smith to give yo a bid on resetting or replacing that bulging retaining wall? I've seen some old Lannon-stone walls he did 20-30 years ago that still look immaculate!"
 
However, there is another perspective to consider- and then determine where to draw the line.

Here in LA, you can't go 1 city block without seeing 10 trees that are potential hazards for a myriad of reasons. I can't stop at every house, obviously.

When I step onto a clients property, if they have a question about this tree and are paying me for info on this tree, do I have to give them free advice about that dangerous tree over there?

What if their neighbor's tree looks like crap? Is that also my responsibility?

What if my neighbor across the street has a crappy tree that I see every day when I walk out the door? Is that my job, too?

And what about the trees in the office complex where I work? They top those things every 6 months. Are those my job?

I'm not always clear on where the line is. And frankly, most people don't care until AFTER something happens, so it often seems like doing my "job" is a waste of time.

Where do you guys draw the line?

love
nick
 
I offer 'free price quotes' for work outlined by the client (ie, a simple removal), and 'consultations' for clients looking for an informed opinion and recommendations. If I did a consultation and missed an obvious defect, I would most likely be liable. On the other hand, if the client called about removing the dead tree next to the garage, and the tree over the sunroom failed the following month, I should not be held responsible, and my paperwork would reflect that I was hired only for the work specified.

It's still a fuzzy line, but I figured I'd add this bit for some help.

-Tom
 
You write "I should not be held responsible" and many might agree...but would a judge, jury, and a few lawyers agree?

If I bring my car in for tire rotation and the brakes fail a week later, and they just happened to be leaking fluid the day of the rotation, can the mechanic just claim, "what? I was just being hired for a tire rotation!"

It's sortof the same thing, right?

This is something I think about a lot and it sortof drives me bonkers sometimes.

love
nick
 
I second Nick. "I should not be held responsible"? You should be and are responsible, as a professional and as an ethical human being.

Not saying you need to be able to predict the future, but if you are trained to recognize hazards then you need to use this training. Not doing so is EXACTLY the same as the scenario Nick pointed out, which would be unacceptable behavior for a professional mechanic. In this case a mechanic could (and should) be liable for injury caused by his negligence.

Furthermore, I find it odd that we would do anything but embrace this aspect of our job. Don't we want to differentiate ourselves from the many hacks and sleazeballs and other untrained folks that try to offer what, to an ignorant client, might seem a similar service? Shouldn't we emphasize that with our higher price tag comes greater training and experience so that our clients have peace of mind about the safety of their trees?

Perhaps it's because I'm a worker and not a business owner, but I'm a little surprised at the lack of enthusiasm for standing up and saying something. If they decide not to act that's their business, but at least you know you did your job. And it IS your job!
 
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Shouldn't we emphasize that with our higher price tag comes greater training and experience so that our clients have peace of mind about the safety of their trees?

[/ QUOTE ]

That is the exact angle I take. My clients know that they aren't hiring me because I'm the cheapest guy. They hire me to work with them and their trees because they know their stuff is gonna be taken care of.

For me, I draw the line in the neighbors yard. If I can see a crappy tree next door, I'll ask for an email or name or phone number or something so that I can contact them later (if they are not home then) and let them know about a situation.

For me it doesn't have to do with ethics. I see it as a way to get the foot in the door (while at the same time doing the right thing). This is where a lot of people are like, "Thanks, but...who cares." But every once in a while people are very happy with the info I am sharing with them...

love
nick
 
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For me it doesn't have to do with ethics. I see it as a way to get the foot in the door (while at the same time doing the right thing).

[/ QUOTE ]

This is the fiduciary responsibility I refer to, we should always be looking for more work. If it can be added onto this job or scheduled for latter in the year we should not be satisfied with just working one tree on a property. "there is an included seam on the red maple: I could reduce the end rather quickly and lightly thin it for $XX(X) right now."

Of course we can take this too far and become the unethical wood cutter looking for wood to cut; but i can usually find a legitimate reason to modify the current form of almost any tree on a lot. Sometimes i will say it is needed in a year or two - and I will call them to schedule then.
 
Nightmare situation really. It seems to me that any tree can fail if the wind or circumtances hit them right. I often get calls where a client says " i am afraid of this tree, and I want it down." I look at the tree and it seems fine to me and I say dont cut it down. They take my advice and then it blows over in a storm. that is a nightmare for me. agh.
 
[ QUOTE ]
I second Nick. "I should not be held responsible"? You should be and are responsible, as a professional and as an ethical human being.

[/ QUOTE ]

Will, I'm not sure you read what I wrote. If a homeowner hires me to take down a dead lilac bush in the front yard, and wants no more, I SHOULD NOT BE HELD RESPONSIBLE for the giant Oak in the backyard with the huge cavity. Of course if I see it I am going to let them know, but I don't go scoping out people's property if I am not hired to or expected to.

On the other hand, if I am brought in for my professional opinion of their trees and landscape, which is usually the case, I most certainly should be held responsible for sharing my findings.

-Tom
 
Tom, based on what I learned at a couple of Arboriculture and the Law seminars, you are about half right (or I may not be understanding you). What I learned is that if you walk past a hazardous tree on your way to look at the tree you were called to evaluate, you are obligated to point it out. If you are called about a tree in front and there is a hazard in the back, you are not liable (but you should make a note on the paperwork to the effect of "no backyard inspection"). So, in the first example, it depends where the sun room is. In the second example, you are probably in the clear.

Your point about offering a free evaluation of a nearby tree just illustrates why I don't give "free estimates." More accurately, I give free estimates but only after a paid evaluation of the site.

That's all about the law (as I understand it, and I am not a lawyer). Ethically, I think we should warn people about hazards. From a business perspective, I agree with JPS and others above--why miss an opportunity to sell more work?
 
Like I said, practically all of my clients/callers are looking for a professional evaluation of their trees/property, so I am more in the liability-laden end of the spectrum here. I think you are right that it depends on the location of the hazard, but again, there could be some gray area there as well.

-Tom
 
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