One dead, Biltmore Estate, Asheville

[ATH]

I didn't take the class for a long time because it seemed subjective to me. Now that I took the class, I am gladI did and will probably keep the certification current. This is mostly because I feel I was already doing it as a certified arborist, and this just gives more backing to that. I should so though, I have not done any official traq work since getting certified. When we ask people if the want to pay for a traq, or get a free estimate for work they want, for some reason they always say free estimate lol. Plus, I don't really want to do a traq, and then bid on the work...I rather do one or the other.

I too would be curious on someone's opinion on this that does a lot of traq reports, or even court cases.

You are asking the wrong question.

A risk assessment is a professional service that will help identify elevated risks and provide recommended mitigation as appropriate.

You provide that report. They ask "who should we hire to do that work?" "Westbe happy to quote that for you."

We don't do that often...but when someone is asking for a risk assessment, we talk through what that means and confirm that is what they are looking for. They know that is a billable service.

 

[ATH]

For sure subjective. There’s a huge effort where I work to get everyone on the same page and consistent. For the most part people rate risks too high from my experience and seeing it from around 30 colleagues.

There have been a number of studies finding that less experience and less training lead to higher risk ratings. I'm sure some of those have been issued in the ISA and/or TreeFund publications.

Here is the first one I found in a quick search:

https://ohiodnr.gov/static/documents/forestry/uftoolbox/ImpactRiskAssessmentProfessionals.pdf

Now the question is "who is right". I wonder if anyone has gone back through and evaluated? Probably not. You'd have to have hundreds of arborists reviewing thousands of trees then reevaluate those trees every few years and document failures or non-failures (which never get reported).

 

[Basswood]

There have been a number of studies finding that less experience and less training lead to higher risk ratings. I'm sure some of those have been issued in the ISA and/or TreeFund publications.

Here is the first one I found in a quick search:

https://ohiodnr.gov/static/documents/forestry/uftoolbox/ImpactRiskAssessmentProfessionals.pdf

I’ll give that a read! Dr Smiley was one of my instructors.

 

[climbhightree]

The idea is reducing risk. There are risks in every facet of life. TRAQ was designed to line up with the language and procedures used in the legal and insurance industries.

We recognize there is risk, but how much risk? There is certainly some subjectivity to it, but as a risk assessor, my job is to provide information that would stand up in court.

So on this tree, that might look like "Yes, the tree that failed had an identified defect. However, a cable was installed and inspected according to ANSI A300 Standards in order to mitigate that defect. Once that cable was in place, the likelihood of failure was reduced to improbable , making the tree in question a low risk tree despite the fact that we recognize a Frequent occupancy rate."

(Now, if the cable didn't meet ANSI standards, there is a lot more trouble there...)

Or for a tree that had been identified as "Improbable" failure with no visible defects, it might be:
*The weather event that caused this failure was an abnormal event.
*The defect that lead to failure was not detectable with a visual inspection and there was no indication that a more thorough inspection was warranted.

I understand it, but it is still subjective as far as the ratings go. In the class, it didn't matter if you had the same ratings (no 100% correct answer there) it just mattered that you followed through the correct steps and process for the most part. All of which is why it is up the the property owner to determine his comfort level after the risk assessment is given (once again I should probably be pulling out my book).

So it isn't really black and white which makes it a matter of who the judge/jury believes more in a court case...like any competing professional on either side of the case. Hindsight is always 20/20, so comments like - "The defect that lead to failure was not detectable with a visual inspection and there was no indication that a more thorough inspection was warranted" doesn't always fly well with people

Fully agree with - "(Now, if the cable didn't meet ANSI standards, there is a lot more trouble there...)" which would include follow up cable inspections (proof of)

 

[climbhightree]

You are asking the wrong question.

A risk assessment is a professional service that will help identify elevated risks and provide recommended mitigation as appropriate.

You provide that report. They ask "who should we hire to do that work?" "Westbe happy to quote that for you."

We don't do that often...but when someone is asking for a risk assessment, we talk through what that means and confirm that is what they are looking for. They know that is a billable service.

I feel that is a conflict in interest (especially if doing an official report). personally. I have run into associations accusing me of that, which is part of why I no longer work for that church camp grove area.

We do talk them through what the risk assessment means and that it is a billable service

 

[ATH]

...

So it isn't really black and white which makes it a matter of who the judge/jury believes more in a court case...like any competing professional on either side of the case. Hindsight is always 20/20, so comments like - "The defect that lead to failure was not detectable with a visual inspection and there was no indication that a more thorough inspection was warranted" doesn't always fly well with people

...

I think that is the point. Find an attorney who will give you a solid "yes" or "no".

It is about probability and reasonable assessments.

One example, not to ignite an argument, is RoundUp. It would be illegal for them to put a Prop 65 warning because the EPA says glyphosate is probably not a carcinogen. But jurors are, apparently, disagreeing with that assessment. WHO says it is "possibly a carcinogen". Right or wrong they are making decisions based on conflicting language.

 

[ATH]

I feel that is a conflict in interest (especially if doing an official report). personally. I have run into associations accusing me of that, which is part of why I no longer work for that church camp grove area.

We do talk them through what the risk assessment means and that it is a billable service

Tell them they are more than free to hire anyone of their choosing to do the mitigation work.

They hired you to do a risk assessment. You do that, provide a report, they pay you. That part of the relationship is over.

Now they decide if they want to hire someone to exercise the recommended mitigation measures. It is their choice to ask or not ask you to bid that work. It is their choice to accept or not accept your bid.

Where's the conflict?

If I go to the doctor for a diagnostic visit, they will bill for that. If they offer to fix the problem I can have them do that or I can take my scans and have another doctor address it. Or, I pay the dentist for a cleaning and exam every 6 months. If they find a cavity, I have them fix it. I don't accuse them of a conflict or interest because I hired them to examine me then they offer to fix something they found

 

[climbhightree]

Tell them they are more than free to hire anyone of their choosing to do the mitigation work.

They hired you to do a risk assessment. You do that, provide a report, they pay you. That part of the relationship is over.

Now they decide if they want to hire someone to exercise the recommended mitigation measures. It is their choice to ask or not ask you to bid that work. It is their choice to accept or not accept your bid.

Where's the conflict?

If I go to the doctor for a diagnostic visit, they will bill for that. If they offer to fix the problem I can have them do that or I can take my scans and have another doctor address it. Or, I pay the dentist for a cleaning and exam every 6 months. If they find a cavity, I have them fix it. I don't accuse them of a conflict or interest because I hired them to examine me then they offer to fix something they found

What I was accused of was making my own work...putting a high rating on something so I could then do the work. So we said we are done doing walk throughs. Either you tell us what you want done, or if you hire an outside consultant to assess the trees.

We worked in the area for almost 20 years, and with new board members and different mindset of people we no longer wanted the liability, or headache, of working for them.

After this situation, we basically require outside consulting for the assessment, if we are doing the work.

 

[colb]

For sure subjective.

Maybe yes *and* no on that? To me, the term "likelihood", as used in TRAQ, is an accurate assumption that an arborist can collect *ordinal* data on tree risk from which gross ordinal categories of risk can be arrived at. Ordinal data are ordered correctly and nothing else is guaranteed - very different from continuous measures of data (ratio and interval) where a specific value is measured and there is a specific distance between ordered data points. It is possible to overload the "subjective" latitude of ordinal data, but it's really hard to, and it's really hard to do it repeatedly through multiple matrices. In quantitative analyses (traq is explicitly qualitative), ordinal data do not fit assumptions of normal distribution and are thus analyzed using nonparametric statistics instead of the more powerful parametric family of statistics, which are more powerful at getting things wrong as well as right. The point is, there are responsible ways of handling qualitative data - a whole body of research around it - and I sense the intention of the traq designers to make a robust qualitative system to describe risk. I feel that boxing it as subjective is giving it a bit of a short straw.

 

[colb]

If you are doing a Level 1 and you see a cable, doesn't that pretty much guarantee that you need to do at least a Level 2, if not even a 3 on that tree?

If the risk will be the same qualitative level, then there is no reason. Looking at the TRAQ form i just accessed from the ISA website, if the likelihood of impact is *very low*, the risk rating is going to be low regardless of the consequences of failure. There is not a level 2 or level 3 assessment that can change that. The likelihood of impact has to be *somewhat likely* **and** the likelihood of failure has to be *imminent* before risk can possibly reach the "moderate" level - the first departure from low.

 

[colb]

During open hours

The non-open hours presumably have close to no traffic, so the target occupancy has to be high during open hours to make up for that. The target occupancy during storms as shown in the video is going to be lower than normal as well...

 

[ATH]

.... if the likelihood of impact is *very low*, the risk rating is going to be low regardless of the consequences of failure. There is not a level 2 or level 3 assessment that can change that. ...

Good point. That is why it would never make sense to do risk assessments in back county areas with no trails, etc... Though it might bring up the quiet"why did you bother cabling a low risk tree?". Maybe if occupancy rate changed or it was cabled just for the sake of preserving the tree, not reducing risk to other targets?


Same idea if the probably if failure is "improbable". However, documenting the rest does at least acknowledge "we recognize the situation that this would impata target and cause damage." But if there is nothing about the tree that suggests probably of failure, a Level 1 stops there so the other questions are not asked... right???

 

[cerviarborist]

I think they’ll win the settlement. There have been cases similar where work was being done in one area, a failure occurred in another, and the company was sued for negligence.

Actually nobody wins a settlement. A settlement is negotiated both as an expedient way to settle the matter with minimal expenses, and because neither side wants to run the risk of a court ruling favoring the opposition. That's the reason why nearly all tort cases result in settlements. How much money exchanges hands in the course of the settlement will depend upon the strength and diligence of the experts involved.

If indeed an isolated violent storm can be attributed to the failure, it not only makes it easy for the defense to make an argument that the injury and death were caused by an "act of god", but it also calls into question why the plaintiffs family would want to be out driving around on a day like that, when risks to motorists are greatly increased from numerous sources. There's a lot more to consider than the tree and the unfortunate victim, which is why issues like these are litigated.

 

[cerviarborist]

Good point. That is why it would never make sense to do risk assessments in back county areas with no trails, etc... Though it might bring up the quiet"why did you bother cabling a low risk tree?". Maybe if occupancy rate changed or it was cabled just for the sake of preserving the tree, not reducing risk to other targets?


Same idea if the probably if failure is "improbable". However, documenting the rest does at least acknowledge "we recognize the situation that this would impata target and cause damage." But if there is nothing about the tree that suggests probably of failure, a Level 1 stops there so the other questions are not asked... right???

It is generally accepted that people choosing to go into remote areas, even those with public and private access, take a great deal of responsibility for what might happen to them out in the boonies. Most people go to back country areas specifically to avail themselves of unaltered nature. Makes it really hard to recover from an incident. It's easy for the defense to invoke the "If you didn't want to go to Chicago, why did you get on the train?" argument.

 

[Basswood]

Actually nobody wins a settlement. A settlement is negotiated both as an expedient way to settle the matter with minimal expenses, and because neither side wants to run the risk of a court ruling favoring the opposition. That's the reason why nearly all tort cases result in settlements. How much money exchanges hands in the course of the settlement will depend upon the strength and diligence of the experts involved.

If indeed an isolated violent storm can be attributed to the failure, it not only makes it easy for the defense to make an argument that the injury and death were caused by an "act of god", but it also calls into question why the plaintiffs family would want to be out driving around on a day like that, when risks to motorists are greatly increased from numerous sources. There's a lot more to consider than the tree and the unfortunate victim, which is why issues like these are litigated.

Fair enough, poor wording on my end and being lazy. I do think they’ll either get a settlement or have a decent chance at winning in a trial.

I don’t agree with it, but it is highly possible.

 

[colb]

if there is nothing about the tree that suggests probably of failure, a Level 1 stops there so the other questions are not asked... right???

At risk of appearing to contradict myself talking about ordinal data and robusticity... I would suggest that no metrics of traq are further apart in our ability to determine with accuracy than target occupancy determination and determination of the likelihood of failure, and you're trying to apply my argument from one to the other. I respectfully resist the transfer, lol, while agreeing with you about your conclusion regarding likelihood of failure. However, in this case I continue to assert (possibly incorrectly since my boots are not on the ground...) that target occupancy is a sufficient weakness in the lawsuit - sufficient enough to not need to address likelihood of failure, and other aspects such as "why was it cabled then?" (to which the sole and correct answer in my view is to provide additional support).

 

[ATH]

At risk of appearing to contradict myself talking about ordinal data and robusticity... I would suggest that no metrics of traq are further apart in our ability to determine with accuracy than target occupancy determination and determination of the likelihood of failure, and you're trying to apply my argument from one to the other. I respectfully resist the transfer, lol, while agreeing with you about your conclusion regarding likelihood of failure. However, in this case I continue to assert (possibly incorrectly since my boots are not on the ground...) that target occupancy is a sufficient weakness in the lawsuit - sufficient enough to not need to address likelihood of failure, and other aspects such as "why was it cabled then?" (to which the sole and correct answer in my view is to provide additional support).

I don't know enough about occupancy rate of the site. If it truly is 120 cars per minute, I'd argue that is very near constant if not frequent. Think relative to other traffic patterns...that is relatively heavy flow of traffic compared to a "normal" 2 lane road. It's not LA rush hour traffic...but it's far more than most residential roads in most of the country. If I cared to dig it up, I'm sure there are published traffic studies showing variability in traffic rates.

My next question about the cabling then becomes "why support that tree, and not every tree with a co-dominant leader?".

 

[cerviarborist]

I was considering the notion of two automobiles passing under the same tree every second. So, as I'm sure the defense would do, I reviewed that video clip with a stopwatch and found that the interval recorded was a lot closer to three seconds, than one. Further, if you look beyond the tree in the distance, you can see that the nearest visible car traveling in the same direction as the victim's is well ahead of them. I'm sure that if that road goes only into and out of Biltmore, they've got well kept records of just how many vehicles pass through there daily. I wouldn't presume to offer any opinion on occupancy rate based on 3 seconds of video.

Also remember that trees are not assessed for risk against the worst possible weather condition (For example, Florida trees aren't assessed for risk based on how they would fare in a hurricane, which might strike a particular area once in 20 years or more, but rather on how they would fare against tropical storms, which hit pretty much everywhere in the state once or twice a year.). It's a terrible tragedy, but I still think that if records of ongoing diligence in inspecting that tree are in place, the plaintiff will have a very high mountain to climb before they would be awarded significant damages.

 

[Stumpsprouts]

But if there is nothing about the tree that suggests probably of failure, a Level 1 stops there so the other questions are not asked... right???

I know we are partially talking in hypotheticals, and when attempting to talk about this specific tree we are just guessing based of a couple images, but it does seem clear there was significant rot on the main stem that would have been visible from the ground on this tree.

 

[Dan Cobb]

Biltmore draws 1.7 million visitors annually. If they're open 360 days/year, 3 people per car, and everyone arrives in a 4 hour span, that's about 6.5 cars per minute going in, one about every 9 seconds on average.