Been Sued for you "opinion"

Re: Been Sued for you \"opinion\"

For me I must seperate paying work and the rest as I need to keep my sanity (well what there is of it). Long ago I gave up mentioning to neighbours/municapalities/organizations that their trees have a problem. Like you the reply was not what I wanted to here (no reply is still a reply).

Duty of care and standard of care are very interesting legal concepts and are really what this post falls back on. What is your duty, what standard must you meet and can you be held liable if you provide work commensurate with the remuneration?

I think that either as an industry we do not undertand what our duties and standards are, or quite likely that we have had little definition of these duties and standards that we can understand.

The other consideration is that the vast majority of tree companies are pruning/removal companies and have no real training to offer anything else. Thus as a whole we are struggling to offer "consultancy" under the banner of tree service.
 
Re: Been Sued for you \"opinion\"

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The other consideration is that the vast majority of tree companies are pruning/removal companies and have no real training to offer anything else. Thus as a whole we are struggling to offer "consultancy" under the banner of tree service.

[/ QUOTE ]

What other "banner" would you suggest it falls under? I would still consider hazard assessment as a tree service. What else would it fall under?
 
Re: Been Sued for you \"opinion\"

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What other "banner" would you suggest it falls under? I would still consider hazard assessment as a tree service. What else would it fall under?

[/ QUOTE ] "Consulting Arborist" or "Arboricultural Consultant". My company stopped being a tree service in 1992 when i got certified. Been an arborist ever since. Yes there is a difference.

Re passing comments, I like the GP analogy--if you want an opinion I must take the time to make it a qualified one and you must pay for that time.

I'm due to get new forms printed--I'll look into the cost of having a disclaimer on the back side of the client copy. Since I deal with over 90% of them via email (which I strongly recommend)I think I'm fairly covered already by emailing it and getting a response .
 
Re: Been Sued for you \"opinion\"

well this is getting back to the concept of people overstepping their knowledge but I would think aborists need to be seperate from tree services and consultants seperate from arborists. Once again I am sure there will be one or two who misunderstand, but think about the simpliest of distinctions, virtually everyone on this board would like to be called a tree service or arborist and not a topping hack.

On a more serious note if you have a yellow page ad for tree service and list hazard assessment/consultation as a service does this immediately mean you have a higher duty of care versus somebody who only advertises tree removal?
 
Re: Been Sued for you \"opinion\"

Of course one of the major problems with distinguishing levels of ability is for the general public to understand them. My experience has been that the public sees a truck and chipper and this implies you can do pretty much anything with trees. There are exceptions but I am sure that very few people check the YP heading for arborist or arboricultural consultant and how many check the ASCA site for RCAs?
 
Re: Been Sued for you \"opinion\"

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I am sure that very few people check the YP heading for arborist

[/ QUOTE ]Here they do because they know. All my new calls are from that ad and referrals.

the kind of professional assessment that minimizes liability for all concerned takes a lot of valuable time. You should be paid for this time, and if you are not, think carefully before offering an opinion. Getting paid for assessment affords the time needed to put together and write down a report that a tree owner can use. It also removes the appearance of bias, since assessors will not be compelled to sell maintenance or removal to justify their assessment time. Risk assessment is a distinct service, best done independently, and separate from the sale of tree care services.

That said, once the consultation is over and I've given them the name of local arborists, if they want me to do the work I just put on a new hat--literally--and propose doing the work if I want it, unless the job has legal overtones or conflict is an issue. As long as you maintain independence you can do both. I know there are contrary opinions--I've been having that argument with ASCA board members and directors for 15 years--but the opinion can be independent even if you do the work later.
 
Re: Been Sued for you \"opinion\"

My sentiments EXACTLY Guy!

A well considered report discusses full options and delivers the justification. So if the client then wants me to bid, I can do. Its not as if I've tried to hide anything.
 
Re: Been Sued for you \"opinion\"

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I'm looking into "professional insurance" to cover me in such a case. Should cost about $2500/yr it seems.

love
nick

[/ QUOTE ]geez Nick, I pay a fraction of that for Errors and Omissions coverage, and the wording in the policy checks out pretty well. I've heard $5000/year for coverage from a specialist, Jim Leatzow, who I heard present at ASCA.

[/ QUOTE ]

I'll look into it more. But this is to also cover splicing classes AND recreational climbing classes.

love
nick
 
Re: Been Sued for you \"opinion\"

Nick are you producing products for sale? IF so I would expect you would pay $10,000 or more.

Guy you still have not talked about all those times you do not get paid for your opinion. I would bet that the vast majority of opinions given by arborists are unpaid for and I wonder about liability.

Somebody has mentioned (in another post) the free estimate that turns into picking your brain for info. Is this an area where we have liability?

It seems to me you should only have liability when you are doing paid work, but I very much doubt this would be the limitation set in a legal case. It seems to me that we are in a very tricky position that may come back to bit us.
 
Re: Been Sued for you \"opinion\"

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Guy you still have not talked about all those times you do not get paid for your opinion.

[/ QUOTE ]Over the years "all those times" have become fewer and fewer, to save my sanity as someone said. My free opinions are highly qualified, in more than one meaning of the word...no absolutes uttered. It's easy to say I will need an hour to generate a reliable opinion, and that will cost $X.

Nick, rec climbing, is it that high? I know a guy in Louisville KY who organizes rec climbs-I'll send you his contact if his insurance is reasonable.
 
Re: Been Sued for you \"opinion\"

I doubt the situation you experienced would arise here.

Over here insurance companies pay out on trees, live, dead, decayed falling or otherwise. A loss adjuster told me that informing the owner of a impending hazard and reporting it still makes no difference, we pay out. So there's a mentaility of waiting for it to fall so insurance coughs up. If the client had a report to the contrary they would just bin it.

In the case of vehicles if the damaged vehicle was comprehensively insured they insurance would have to pay out regardless of the condition of the tree.

If the vehicle was only Thrid party or non insured then you would be in that scenario where the owner of the vehicle could debate neglegence for the tree owner not doing something about it ... which is likely what is happening. Now that the insurance company is not paying out the tree owner is clutching at straws to get out of it, your few words being all they got.

Here's a thread called, Ignore it then claim it on insurance.

http://www.treeworld.info/showthread.php?t=267
 
Re: Been Sued for you \"opinion\"

Guy- I would appreciate that.

This is another discussion- but insurance people around here don't know about splicing and arborists and tree climbing- so they just come up with something that they think will cover what I'm wanting....but they want WAY too much money.

To add to the current discussion, I don't think ANY court could reasonably expect someone to notify the owner of an unsafe tree they just drove by or walked by. I see trees ALL DAY around here...I'd go nuts if I HAD to write a letter and document EACH one. That is ridiculous to think it was expected of me because I knew better.

love
nick
 
Re: Been Sued for you \"opinion\"

In Canada, insurance company are trying to pay out less often, so I am sure they are just playing games hoping to be forgotten. At the same time we are becoming a more litigious society.

Most tree companies have liability insurance that applies to work, or supplies and finished products. Professional opinion is generally excluded. Thus you may be left holding the bag for a case of giving a free "consult"

Guy you are a very lucky person if you are able to charge for most consultation. I doubt many are in this postion.

You are correct Nick that a court could not hold you liable for an unsafe tree you pass by, but if you had anything to do with the property then you quite possibly are going to be held to account and the courts will decide if you are liable.
 
Re: Been Sued for you \"opinion\"

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you are a very lucky person if you are able to charge for most consultation.

[/ QUOTE ]Along with that luck, it's taken 20 years of work in this market, talking up arborists and tree value and hitching my wagon to stars like ISA and other good orgs and good people.
cool.gif


I got 3 new clients today for consults, all from the yp arborist ad.
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If their neighbors ask for an opinion, they can get it, for a fee. Hey we all invested in our training, right? Giving it away cheapens the profession.
crazy.gif
 
Re: Been Sued for you \"opinion\"

Guy I have no doubt it has been a lot of work over a lot of years. What I have found is that you need a sophisticated, moneyed audience to preach to.

You are absolutely correct about giving it away. Don't. I know some landscapers that will not talk without a design fee being charged. As arborists we need to do the same, but it is very difficult, free estimates somehow turn into gratis recommendations and its a short step to consultation.
 
Re: Been Sued for you \"opinion\"

The problem is the lack of business skills. Arborists/tree services tend to use the free estimate as an easy way to get prospects and avoid having to sell. Give em info and a price and if they like you they'll buy. Everything that you have said is absolutely true but it also points out the importance of selling and seeing a sales opportunity. Since it is knowledge that you are selling as a consultant then when asked to render an opinion, even a casual one, you need to don the sales cap and start selling!!

Ever been to a "free seminar" for something only to find out it's really a teaser with a big element of selling the video, book, week long training retreat, or something along those lines?

It's really about getting paid for what you know. Then the application of disclaimers and limitations is clear and in accordance with the law.

Here are some excerpts from a Tree Risk Assessment presentation by a certified tree risk assessor:

"If you own, manage or work on properties with trees, you should become aware of your responsibilites for managing tree risk...

listed below in descending order according to level of PERCEIVED defensibility expected of the tree risk assessor;

Consulting Arborist
Arborist
Tree Cutter
Landscape Maintenance Staff
Home Owner"



In other words, The higher your standing the greater your exposure and thus the more you'll have to be able to defend yourself. It would mean the scope of the work you are doing on the property will determine the degree of your "duty of care". So state clearly the legal boundary. Here is were you can attach an addendum to any report where you feel other trees on the property need to be assessed. This would then cover you with regard to your "standard of care".

the definitions of (from the same presentation)

"duty of care":
a legal responsibility to ensure that the owner's trees are reasonably safe.

and

"standard of care":
That degree of care which a reasonably prudent person should exercise in same or similar circumstances.

also,

"due diligence" requires that tree owners undertake tree risk assessments in order to identify extreme and high risk trees, and mitigate those risks as means of ensuring worker safety, as well as that of citizens and property.

I would argue mrtree that you could safely say that you had advised the owner that the tree is in decline and would be completely dead within 5 yrs and that due diligence had not been carried out by the owner. It is not reasonable for anyone to think that the tree would be fine for 5 yrs then drop dead, literally!
 
Re: Been Sued for you \"opinion\"

"The higher your standing the greater your exposure and thus the more you'll have to be able to defend yourself. It would mean the scope of the work you are doing on the property will determine the degree of your "duty of care". So state clearly the legal boundary. Here is were you can attach an addendum to any report where you feel other trees on the property need to be assessed. This would then cover you with regard to your "standard of care"."

This is not strictly true, you cannot determine your required duty and standard, a court will decide it. Adding clauses, exclusions etc. may help to minimize your exposure but under English Common Law anybody can sue anybody for anything. It is only after the legal preceedings begin and at disclosure of documents and then examination for discovery that you can "argue" your duty and standard.

The most interesting thing in this thread is the complete lack of first hand examples. I think very few people have ever had there consultations held to the legal test. I spoke with an insurance broker who sells E&O insurance for arborists and he cannot name one case in Ontario where an arnorist/consultant has been taken to court. Much of our concern about liability is due to scare tactics and media.
 
Re: Been Sued for you \"opinion\"

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The most interesting thing in this thread is the complete lack of first hand examples. I think very few people have ever had there consultations held to the legal test.

[/ QUOTE ]There are not that many consultants here--post this on uktc or asca and you will hear something.

Closest I came was cutting back a leaning red oak over a house. the day after the next thanksgiving it cleaved the structure, causing $38k in damages. I never got in trouble over it because the owner understood that I had made sure the pruning was his decision. I'll keep pruning leaners, but now I check more closely for soil failures...

Standard of care is determined by the practitioner(s). If a case goes to court, the judge learns from the experts, not the other way around.
 
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