Case of the Day – Friday, August 5, 2022

DANGER TREES

It sounds like some kind of leafy superhero – you know, “look, out in the woods, it’s a fern, it’s a shrub, no, it’s … Danger Tree!!!

To arborists, a danger tree is no superhero, but rather a menace. In the non-utility context, a danger tree generally has two attributes. First, there’s something wrong with the tree – old age and decay, disease, an injury … something that adversely affects the tree’s structural integrity.

Second, the tree has to be in such a location that its falling or shedding branches is a hazard to people or property. A weakened and decayed tree in the middle of the forest might concern the fauna, but it’s like a shark in the middle of the Pacific – no cause to empty the beaches a thousand miles away.

Today’s case illustrates again – as did yesterday’s tree falling on a car – that good trial preparation trumps purity of purpose. Perhaps proving in the starkest of terms that no good deed goes unpunished, young and sharp-eyed Patrick Connelly spotted a brush fire burning next to the road. Unaware that the fire had been started after a power line was knocked downed by a poplar tree that had fallen in the wind, our hero jumped from his car to stamp out the flames. But sadly (and terminally), what he stomped on was the live power line tangled in the flaming grass.

Death lasts an eternity; litigation only seems to. Mr. Connelly’s estate sued after the 2003 accident. Nearly ten years later, the case was finally over.

Besides the pathos, our interest is in the power utility’s own Transmission & Distribution Guidelines, which defined a “danger tree” from the electric company’s perspective. For a utility, a ‘danger tree’ might be structurally unsound, but it doesn’t have to be. Sometimes, just being too close to the wires will be enough. In fact, three trees – the hemlock, the alder and the big leaf maple – pose an existential threat, according to the T&D Guidelines.

But here, the tree in question was not even within the clearance zone under the lines, and by all reports was strong and healthy. Connelly’s executor was unable to convince the court that the utility should be held responsible for what happened beyond its 12’ clearance zone. The power company’s adherence to its own standards, as well as to national guidelines, was its salvation.

That’s the takeaway in most of these cases. Adherence to an accepted standard is enough to show that you’ve met the applicable standard of care.

Estate of Connelly v. Snohomish County Public Utility District #1, Case No. 66714-9-I, 2012 Wash. App. LEXIS 2818 (Ct.App. Wash. 2012). During a high windstorm, one of the Lombardy poplar trees located on the property owned by a local school district fell approximately 40 feet across a road onto three high-voltage electrical distribution power lines. Two of the power lines shut off, but the third broke off and landed in a ditch on the north side of the road. The energized power line started a small brush fire.

Michael Varnell and Patrick Connelly were driving westbound on the street when they saw the brushfire. Connelly suggested they stop and stomp out the flames. He was electrocuted when he came into contact with the downed power line.

The Connelly Estate filed a wrongful death action against the Public Utility District No. 1, charging that it negligently performed vegetation management and designed and operated the electrical distribution system. But after a trial, the court ruled that the PUD did not have a duty to inspect trees that did not obviously pose a danger, and did not breach its duty of utmost care in the design, operation, or maintenance of the distribution power line system.

The Estate appealed.

Held: The PUD was not liable.

The parties agreed the PUD owed Connelly a duty of the “utmost care.” However, they disputed whether this meant that the PUD had a duty to inspect every tree outside of the 10- to 12-foot power line “clearance zone,” and whether the protection devices the PUD used were sufficient to meet the duty to protect the public and prevent exposure from high-voltage power lines.

Connelly’s expert testified that the standard of care required the PUD to inspect every tree outside the 10- to 12-foot power line clearance zone that was tall enough to fall on a power line. Relying on prior testimony regarding the condition of the poplar tree, the expert also testified that the PUD had a duty to remove the poplar tree located on the School District property. However, on cross-examination, he admitted that he did not know when the tree would have been an imminent danger and that “I, of course, didn’t see the tree and don’t know anything — don’t know much about the trees.” Bollen also admitted the last time he oversaw a vegetation management program was from 1951-56.

A PUD expert examined the tree in 2007 and 2009, and reviewed photos of the fallen tree. He testified the poplar tree that fell showed signs of preexisting rot, decay, and disease. Furthermore, a PUD arborist had inspected the tree within a week of the accident, and found were no external indicators of rot or decay. He said that he would not have identified the tree as a hazard for removal or trimming.

Another PUD expert, Stephen Cieslewicz ­– a certified arborist and a national consultant on vegetation management practices for utility companies –testified that PUD’s vegetation management practices were consistent with industry standards during the period in question. Mr. Cieslewicz testified that the objective of “line clearance inspections is to review the air space between the lines and along the lines for trees or limbs.” PUD periodically inspected the trees within the 10- to 12-foot clearance zone of the power lines, and removed trees or tree limbs that posed a threat to the power lines. As well, PUD also identified “danger trees” outside the clearance zone that pose a threat to the electrical lines. Mr. Cieslewicz said that the vast majority of electrical utility companies do not routinely inspect trees outside the clearance zone simply because the trees are tall enough to fall on the line.

Mr. Cieslewicz also said that absent an obvious danger or notification from a property owner, the PUD had no duty to inspect every tree outside the clearance zone. In fact, such inspection would border on being impossible. He also testified that inspecting every tree outside the clearance zone in Snohomish County was impossible. Cieslewicz also testified that “[t]here likely would not be records” of the inspection of East Sunnyside School Road “if there was no work required.”

A PUD line clearance coordinator testified that he inspected the area several years before the accident. He said that he had looked down the line segment “and saw that the line was clear; that no tree was in the line.” At no time did the School District notify the PUD that any of the poplar trees located in the area posed a hazard. The evidence showed that during the five years before the accident, the poplar trees were healthy.

The trial court found the testimony of the PUD witnesses more credible than the Estate’s experts, neither of whom had inspected the trees. It held that absent obvious signs or notice that a tree posed a danger, the standard of care did not require the PUD to investigate every tree outside the 10- to 12-foot power line clearance zone. The court also concluded the PUD did not breach its duty of utmost care in the design of the electrical power distribution system.

The Court of Appeals held that in order to prevail on a negligence claim, the Estate had to establish duty, breach, causation, and damages. The standard of care for a utility in Washington is daunting: a power company must exercise “the utmost care and prudence consistent with the practical operation of its plant” to prevent injury.

Although the Estate disputed it, the Court of Appeals found that the trial court had correctly applied this “utmost care” standard. In so doing, the trial court did not improperly emphasize the practical operation of the utility; rather, such practical operation is a relevant factor in determining “whether the utility has conducted its operations under the known safety methods and the present state of the art.” The trial court was within its discretion to let PUD present testimony about whether it was practical to inspect trees outside the clearance zone that did not obviously pose a danger.

The Estate challenged a number of the trial court’s factual findings as well, but the Court of Appeals held that there was substantial evidence to support the determinations. That was all the law required. In particular, the appellate court held that “the evidence established the PUD vegetation management met the standard of care, and the PUD was only required to inspect trees outside the clearance zone if there is ‘obvious evidence of decay or rotting or threat to the power line’.”

The Estate also claimed the trial court’s findings were inconsistent with the utility’s own Transmission and Distribution Guidelines. The T&D Guidelines are evidence of the standard of care, but the state statute relied on by Connelly – RCW 64.12.035 – did not require PUD to comply with the T&D Guidelines. Instead, it only provided electric utilities with immunity for cutting or removing vegetation. The statute does not set a standard of care for the utility, and as the PUD points out, no cases have interpreted the statute as creating a duty or setting a standard of care.

PUD’s T&D Guidelines stated that a “danger tree” was

• forked trees;
• dead or rotten trees;
• trees weakened by decay, disease or erosion;
• trees visibly leaning toward the power line;
• trees or parts of trees which may contact the line under snow, ice or wind loads;
• trees originating from fallen decaying logs, old growth stumps or other unstable rooting positions; or
• troublesome trees such as alder, big leaf maple and hemlock.

The T&D Guidelines did not impose a duty to inspect every tree that may come in contact with the power lines, but rather just trees within the clearance zone and obvious “danger trees.”

The power company prevailed.

– Tom Root