Opinion
No. CV-08-5005654
June 15, 2011
MEMORANDUM OF DECISION
The action stems from the death of William McDermott, who was struck and killed by a log at a State-controlled tree removal site on February 8, 2005. His wife, plaintiff Madeline McDermott, instituted this wrongful death and loss of consortium action in her representative and individual capacities by Complaint dated November 18, 2008. Prior to filing the Complaint, she sought and received permission of the Claims Commissioner to sue the State of Connecticut pursuant to § 4-160 et seq. of the Connecticut General Statutes. The State of Connecticut filed an Answer and Special Defenses dated April 29, 2009, but subsequently withdrew the Special Defenses on June 11, 2010. Plaintiff filed a Revised Complaint dated March 10, 2011.
A seven-day trial of this matter was held before the Court beginning on March 1, 2011 and concluding on March 10, 2001. By agreement of the parties, the trial was limited to issues of liability, with a hearing in damages to be scheduled in the future if the Court finds the State liable in this matter.
I Findings of Fact
1. On the morning of February 8, 2005, a State of Connecticut Department of Transportation (hereinafter "CDOT") work crew was dispatched to remove a 55-foot-tall sugar maple tree in Cromwell, Connecticut (hereinafter "the tree"). The weather that day was clear and dry.
2. The tree was located on a grass strip that runs in a north-south direction in front of 391 Main Street (Route 99). The grass strip is bounded on the east by Main Street and on the west by a pedestrian sidewalk (hereinafter "the work site").
3. The CDOT work crew consisted of six men: Hector Lorenzo, Peter Conroy, Anthony Horton, Keith Tavel, David Dickinson and Lorenzo Pitruzello (hereinafter "the work crew").
4. Hector Lorenzo, Peter Conroy, and Anthony Horton worked exclusively on tree cutting jobs and performed all of the tree removal responsibilities at the work site.
5. Keith Tavel, David Dickinson and Lorenzo Pitruzello sometimes worked on tree removal jobs, but more frequently worked on jobs involving road construction or repair. They were responsible for brush removal, site security, and traffic management at the worksite.
6. Upon their arrival at the work site, the members of the work crew placed two traffic cones on the sidewalk, one at each end of the work site.
7. The cone marking the southern end of the work site was placed on the sidewalk approximately 85 feet south-southwest of the surface of the tree. The cone marking the northern end of the work site was placed on the sidewalk approximately 100 feet north-northwest of the surface of the tree. These cones were never moved during the course of the tree removal operation.
The State attempted to characterize the cones as warnings to pedestrians of the existence of a tree removal operation rather than designations of the perimeter of the work zone, an argument that would have been far more compelling had the perimeter of the work zone been designated in another way. It was not.
8. The work crew cut down the tree by using a man with a chainsaw in a bucket truck. The work crew first employed a method known as "limbing," where they removed the tree's limbs from bottom-to-top. The crew then removed the tree trunk in segments from top-to-bottom, a procedure known as "chunking."
9. At approximately 1:30 pm on February 8, 2005, plaintiff's decedent William McDermott, who had no connection with the tree removal operation, parked his motor vehicle in a driveway located south of the work site. He exited his vehicle and walked north, past the southern sidewalk cone. He then proceeded another thirty feet to where David Dickinson and Keith Tavel were standing, approximately 55 feet from the surface of the tree.
10. When William McDermott arrived at the work site, all of the tree's limbs had been removed, as had several segments of the trunk.
11. William McDermott stood between David Dickinson and Keith Tavel, talking to them for 10 to 15 minutes, as they all faced the tree and observed the tree cutting operation.
12. During this period, Hector Lorenzo was on the ground near the tree, Peter Conroy was in the bucket near the top of the tree holding a chainsaw, and Lorenzo Pitruzello was in the street directing traffic. Anthony Horton was in a pickup truck pointed south along the road, approximately 45 feet east of where David Dickinson, Keith Tavel, and William McDermott were standing.
13. At approximately 1:45 pm, Peter Conroy tied a rope around the top of the tree, which now stood slightly over 25 feet high. The other end of the rope was attached to the trailer hitch of Anthony Horton's pickup truck. Peter Conroy then cut a large notch, known as a "pie cut" or "wedge cut," in the southern side of the tree approximately 14 feet, 6 inches above the ground. He then proceeding to make a horizontal cut, or "back cut," in the northern side of the tree at the same height as the wedge cut. Once Peter Conroy made the horizontal cut, Anthony Horton drove the pick up, pulling a trunk segment approximately 10 feet, 10 inches in height off the tree in a southerly direction.
14. These actions resulted in the aforementioned trunk segment falling to the ground on the southern side of the tree. The trunk segment fell in a controlled manner in the general area where the crew members anticipated it would fall.
15. When the trunk segment hit the ground, it struck a log approximately 25 inches long that had been removed from the tree during the limbing operation. It was not standard industry practice to remove all limbing debris prior to beginning a chunking operation.
16. The log was propelled in the air by the force of the falling tree trunk segment at great speed in a low arc and struck William McDermott, who was still standing between David Dickinson and Keith Tavel 55 feet from the tree, in the forehead, causing him to fall backward and strike the back of his head on the sidewalk.
17. The log eventually came to rest almost 90 feet from the tree, approximately 30 feet beyond where William McDermott was struck.
18. William McDermott died as a result of being struck by the log, either through the force of it striking him in the forehead or by falling backward and striking his head on the sidewalk.
19. The exact circumstances that led to William McDermott's death were not reasonably foreseeable as there was no evidence that anyone had ever been killed or injured in such a manner from such a distance during a tree removal operation.
20. The prevailing safety standard in the tree removal industry is that persons not directly involved in the cutting activity should stand at least two tree lengths away from the tree being cut. William McDermott was outside that range when he was struck by the log.
At trial, plaintiff introduced a CDOT flyer containing an advisement that bystanders maintain a two-and-one-half tree length distance from tree removal operations. Mr. McDermott was standing within that range at the time he was struck. However, other evidence, most importantly the testimony of plaintiff's expert Dennis Ryan, whose testimony the court afforded great weight, indicated that the two tree length standard prevails in the tree removal industry.
21. Tree removal operations hold the realistic potential for serious injury or death.
II Discussion of Law
"In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These essential elements are duty; breach of that duty; causation; and actual injury." LaFlamme v. Dallessio, 261 Conn. 247, 251 (2002). The parties appear to agree that the critical issue in this case is whether the State owed William McDermott any duty. Specifically, when William McDermott walked past the cone on the sidewalk and stood with members of the work crew approximately 55 feet away from the tree during the tree removal operation, did the members of the work crew have a duty to require Mr. McDermott to move to a location beyond the sidewalk cone and, if so, did their failure to do so constitute a breach of that duty?
As relates to the other elements of the negligence claim, the evidence clearly demonstrated that the log was the proximate cause of Mr. McDermott's death.
Without the existence of a duty, there can be no negligence and, consequently, no liability. Waters v. Autuori, 236 Conn. 820, 826 (1996). "`A duty of care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.' OG Industries, Inc. v. New Milford, 29 Conn.App. 783, 790, 617 A.2d 938 (1992), aff'd, 229 Conn. 303, 640 A.2d 110 (1994).' In negligence, the duty of due care ultimately boils down to two components: the foreseeability of the harm and a conclusion based on `the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.' (Internal quotation marks omitted). Clohessy v. Bachelor, 237 Conn. 31, 46, 675 A.2d 852 (1996)." Tonetti v. Barth, 48 Conn.Sup. 54, 55-56 [ 33 Conn. L. Rptr. 703] (2003).
The evidence presented at trial unequivocally demonstrated that the members of the work crew could not have reasonably foreseen the exact manner in which William McDermott was killed. Such a finding is not required, however, in order to find liability in this matter: "[T]o meet the test of foreseeability, the exact nature of the harm suffered need not have been foreseeable, only the `general' nature of the harm." Lodge v. Arett Sales Corporation, 246 Conn. 563, 573 (1998) (emphasis in original). Traditionally, this "general nature of the harm" standard was broadly construed. See, e.g., Mitnick v. Whalen Brothers, Inc., 115 Conn. 650 (1932) (liability imposed upon drivers where an auto accident in which they were involved caused a bystander to suffer a miscarriage); Mellish v. Cooney, 23 Conn.Sup. 350 (Cir.Ct. 1962) (defendant liable as she should have foreseen that leaving her keys in the ignition could lead to a thief stealing her car and damaging a parked car).
In recent years, however, it appears that the trend in Connecticut has been toward limiting the amount of harm that is deemed foreseeable. Freddo v. The Access Agency, Docket No. CV 00-0555736, Judicial District of New London at New London (January 23, 2001, Corradino, J.) [ 29 Conn. L. Rptr. 275]. In Lodge, for example, the Connecticut Supreme Court reversed a finding of liability against two alarm companies that negligently transmitted a false alarm. Plaintiffs were firefighters, some of whom were killed and others injured when their fire truck's brakes failed while responding to the false alarm. In relieving the alarm company of responsibility, the court reasoned that while the catastrophic result of the false alarm may technically have been foreseeable, the general nature of the harm was not sufficiently foreseeable so as to support the imposition of a duty: "In every case in which a defendant's negligent conduct may be remotely related to a plaintiff's harm, the courts must draw a line, beyond which the law will not impose legal liability. Although that line is often amorphous and difficult to discern, we conclude that it has been crossed in this case. The possibility that a city would so negligently maintain its vehicles and that firefighters would operate a fire engine, the mechanical soundness of which was clearly in doubt, is sufficiently remote that a reasonable person should not be expected to anticipate such an event. `To hold otherwise would be to convert the imperfect vision of reasonable foreseeability into the perfect vision of hindsight.' Burns v. Gleason Plant Security, Inc., 10 Conn.App. 480, 486, 523 A.2d 940 (1987); Evangelical United Brethren Church of Adna v. Washington, 67 Wash.2d 246, 261, 407 P.2d 440 (1965) ("[r]easonable foreseeability, rather than hindsight, is the criterion which must be applied"). Consequently, we conclude that the defendants owed the plaintiffs no duty to prevent the harm suffered because that harm was not reasonably foreseeable." Id., 578.
In this case, the critical question is whether the foreseeability line identified by the court in Lodge has been crossed. In other words, should the members of the work crew have foreseen that allowing William McDermott to walk 30 feet past the sidewalk cone and stand with members of the work crew approximately 55 feet away from the tree for an extended period of time during tree removal operations served to expose him to harm of the general nature of that he suffered or was the harm he suffered simply too remote from the risks normally posed by a tree removal operation? In order to answer this question, the court must balance two countervailing factors: 1) At the time William McDermott was struck by the log, he was standing more than two tree lengths away from the tree removal operation, which is considered a safe distance according to the safety standard that prevails in the tree removal industry; and 2) While members of the work crew testified that the size of the work zone shrank as the size of the tree grew smaller, the cones delineating that zone remained in their original positions throughout the tree removal operation.
In regard to the work crew's compliance with the prevailing safety standard, such compliance does not serve, under the circumstances, to allow the State to conclusively escape liability in this matter as adherence to standards or custom, does not, in and of itself, constitute reasonable care in all instances: "Evidence of custom in the trade may be admitted on the issue of standard of care, but it is not conclusive." Coburn v. Lenox Homes, Inc., 186 Conn. 370, 389 (1982); Southern New England Telephone Co. v. D'Addario Construction Company, Inc., 33 Conn.Sup. 596, 598 (App.Div. 1976), citing Restatement (Second) 2 Torts § 295A, comment c. See, also, The T.J. Hooper, 60 F.2d 737, 740 (2d Cir., 1932): "[I]n most cases, reasonable prudence is in fact common prudence; but strictly it is never its measure . . . Courts in the end must say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission."
The court finds the fact that Mr. McDermott was standing within the area marked by the cones as determinative in this case. While his position at the time he was struck by the log did not violate any industry standards or rules, he was standing well within the work zone established by the crew when it set up the cones at the beginning of the day. By setting the cones at the outset of the operation and never moving them, the work crew delineated a work zone that exceeded the industry standard. While the specific event that caused Mr. McDermott's death was not legitimately foreseeable, the general nature of the harm (i.e., the possibility of a bystander suffering injury or death within the perimeter of a tree removal site), certainly was. In setting the perimeter of the work zone, the work crew voluntarily assumed a duty that may not have been legally imposed upon it otherwise. "A person who voluntarily performs an act, without legal obligation to do so, has the same duty of care in performing that act that any other person would have under the same circumstances." Manning v. S.R. Weiner Associates, Docket No. CV 10-6002710, Judicial District of New London at New London (March 22, 2011, Cosgrove, J.) [ 51 CLR. 584], citing Restatement (Second) 2 Torts § 323.
This result also finds support in the public policy considerations regarding the imposition of a duty: "`[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . .' Mendillo v. Board of Education, 246 Conn. 456, 482, 717 A.2d 1177 (1998). `It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required.' W. Prosser W. Keeton, Torts (5th Ed. 1984) § 4, p. 20. An equally compelling function of the tort system is the `prophylactic factor of preventing future harm . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.' Id., p. 25. `[I]mposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy. Before imposing such liability, it is incumbent upon us to consider those risks.' Mendillo v. Board of Education, supra, 483." Lodge, supra, 578-79. The court is keenly aware that requiring tree removal crews to guarantee the safety of all pedestrians and passersby would make the cost of tree removal prohibitive; a result that would clearly run counter to the public interest. However, requiring work crews to keep bystanders and pedestrians out of work zones that they themselves have established is entirely consistent with the public policy favoring a safe populace and a realistic vision of acceptable risk.
III Conclusion
In setting the limits of the work zone, the work crew established the limits of its duty to Mr. McDermott and other pedestrians. Allowing Mr. McDermott to stand within that zone for an extended period of time during tree removal operations was a negligent violation of that duty; a violation that proximately caused Mr. McDermott's death. Judgment shall enter in favor of plaintiff on the issue of liability on all counts of the Complaint and the court will hold a hearing in damages at a later date.