Preface: This is a tragic story of how our city caused the death of a resident, even after being warned about existing problems, and subsequently abandoned the victim of their mismanagement. I have been observing the case of Pitts vs. the City of Davis in court. The legal process is slowly confirming, under oath, the mismanagement of the Davis Tree Program that I have personally witnessed over the past 15 years while attending tree commission meetings. I tried to alert the city council to the issues I observed during multiple public comment sessions, even adopting the persona of the “Davis Lorax.”
This situation highlights the need for accountability and better management practices to ensure the safety and well-being of our community.
I failed
On February 23, 2021, a mother named Jennipher Comey was struck, pinned down, and killed by a city tree that stood beside the sandbox in Slide Hill Park in east Davis. As reported in the Enterprise Sunday, the incident occurred in front of her 3-year-old daughter, Marjory. Two weeks ago, after four years, the city admitted its inadequate tree care and thus its liability. This admission seems to have come only after an under-oath deposition by the former city arborist, Robb Cain, who stated that there was no city record of this tree ever being pruned in the past, no current plan to inspect it for safety, and no future schedule for routine tree maintenance or pruning in Slide Hill Park. This information was provided by a lawyer from the Davey Resource Group, a co-defendant in the case, and the company the city hired to develop its $250,000 Urban Forest Master Plan (UFMP) later in 2021.
In contrast, professional arboriculture standards call for heightened attention to trees that overhang children’s play areas or picnic tables, as the fallen tree did. The trees in Slide Hill Park were neglected and were not even included in the city’s minimal seven-year “block pruning” cycle, which street trees receive according to Davey.
The delay in admission suggests that the city has not provided any financial support to the family over the last four years since the incident. During that time, the now-orphaned girl and her surviving father left Davis and moved to Ohio to be near family for the support they did not receive in Davis.
According to reports in the Enterprise, the city has now offered $10 million to settle the case. The family is requesting $30 to $40 million for the loss of the girl’s mother, based on lost income and care.
During the trial on Friday, the lawyer representing the city stated that they “supported” the father and child in getting what they needed to heal. The family’s lawyer objected to this statement, arguing that the city was not acting in a “supportive” manner, as they had taken no responsibility or made any support payments in the four years since the incident. The judge agreed with the family’s attorney and blocked further such statements from the city in front of the jury, stating four times that they were “gratuitous.”
The case continues to unfold.
The public can watch trial—likely to go on 2 more weeks. It will likely expose more of the inadequacies of the city’s tree maintenance program, and determine the amount of damages the city must pay. Watch either livestream on the internet or in person at yolo superior court in Department (court room) 11 in Woodland. The public can watch at www.yolo.courts.ca.gov . 10:30 to noon and 1:30 -4:30pm every weekday day except court holidays Wed 2/12 and Mon. 2/17.
Alan “Lorax” Hirsch can be seen handing out “love your neighbor” lawn signs most Saturdays in the Davis Farmers’ Market.
One of observations by tree expert on monday trial was break was in middle of limb not at joint. This is unusual — and would indicate end weight on long limb also noted was proximate cause- which a routine pruning cycle would have addressed this.
But stay tuned for more testimony.
The Lorax
I wanted to clarify a point here that seems to have been lost – the way that these kinds of lawsuits happen is the city’s risk management agency – in Davis’ case an outside agency – calls most of the shots – not the city.
YCPARMIA, the risk management pool that the City and most other agencies in Yolo contract with, is responsible for the legal defense in this case.
As part of this defense, the Davey Resource Group (DRG), a contractor that conducted a tree inventory for the City in 2018, is also involved.
The legal team has decided to acknowledge liability, which narrows the focus of the trial to two main issues:
The amount of damages to be awarded.
The percentage of those damages that will be assigned to YCPARMIA and DRG.
Currently, the trial is in its early stages, and additional testimony and evidence will be presented as it progresses.
Seems to me that the end result of this will likely be a reduction in the number of trees throughout the city, and/or a reduction in canopy (shade).
This has already happened. Tree crews came into Chestnut park and removed all the lower branches from all the trees, substantially reducing the shade provided.
Yeah, I figured it would.
Honestly, the only place they need to do this is over picnic benches/play areas.
Other than that, take a chance in life. And don’t assume that trees are safe during a windstorm.
Trees and branches fall all the time, including including in city parks (e.g., Golden Gate Park).
“in Davis’ case an outside agency – calls most of the shots – not the city…YCPARMIA, the risk management pool that the City and most other agencies in Yolo contract with, is responsible for the legal defense in this case.”
To expand on what David wrote, my understanding is that it’s the policy of YCPARMIA to deny all claims initially, and litigate as necessary. (It might not be quite that cut-and-dried, but I think that’s the practical effect.) This serves to discourage spurious claims, as it costs money to file suit and pursue a claim through the legal process. To do otherwise would invite flimsy or bogus claims and leave their resolution to YCPARMIA staff, who don’t have the time and/or expertise to adjudicate claims. Since all YCPARMIA members are public agencies, the goal is to protect taxpayer dollars.
I have a number of insurance company attorneys as clients, and I see much the same approach in the private sector, at least on personal injury cases. One lawyer told me that the insurance company he represents will readily spend $100,000.00 defending against a $10,000.00 claim, as they don’t want to get a reputation for settling without a fight.
Was this a flimsy claim or real mismanagement?
I another others saw the city tree program struggling due to lack city management support for years.
Rob Cain statement on witness stand Tuesday was damning. No after the fact outside expert can make that go away…
Will anyone-but the tax payer be held accountable?
“Will anyone-but the tax payer be held accountable?”
This is the general problem of governance. When a police officer improperly shoots and kills someone, they generally have qualified immunity, and the damages are paid by the jurisdiction.
David: That’s actually a sign of ignorance among the public (those selected to serve on a jury). They don’t seem to realize that “they” are the defendants. Or perhaps more accurately, they figure that “someone else” will pay the bill.
But if they’re poor-enough to not be subjected to the bill, then they might actually be right.
For sure, the reaction of the city is NOT going to be to trim the trees “more responsibly”. The reaction is going to be to reduce liability (trees, canopy, etc.).
And before you know it, the development activists on here will start claiming that we need more development to pay for existing trees.
And/Or . . . provide shade from solar panels instead of those pesky solar-panel-blocking big weeds (formerly known as trees).
Trees are responsible for global warming by blocking solar panels, requiring leaf blowers and chain saws, crushing cars and cracking sidewalks – requiring replacement, etc.
Fortunately, mankind is actively taking steps to avert this environmental catastrophe.
“unFortunately,
mankindhumanity is actively taking steps toavertEXACERBATE this environmental catastrophe.”fify
City Manager and top city staff is not protect by a police union.
Qualified immunity is not based on unions. It applies to all government officials, not just law enforcement. This includes officials like teachers, social workers, and college presidents
Accountability:
City manager can be fired.
Top management can be demoted..
Police officers are protected by union.
Deny all claims initially is different than 4 years.
I served on a jury in a wrongful death case.
You are presented with the facts of the case to determine if the defendant is responsible.
You are presented with estimates of the value of the lost life. Expert witnesses for each side will present information about potential lost earnings. They will likely also present estimates of future costs of special needs that may have arisen due to the incident.
The jury will have to evaluate the testimony from the expert witnesses and come to an agreement about that value.
You may decide, as a jury, that the defendant is partially responsible, in which case the jury will determine the percentage. Jury may also be asked to consider punitive damages, which are not necessarily tied to any of the foregoing and can be seemingly arbitrary.
Judge’s instructions will not include any consideration of the source of the payments.
The city is not going to reduce the number of trees in response to this case. The current goal is to make sure we are planting as many trees as are being removed, if possible. Ultimately the goal is to increase the number of trees being planted and to increase the canopy of the city’s urban forest. That is a key part of adapting to climate change.
Appropriate reaction to this tragic case is to increase and document the industry-standard safety evaluations of trees, which vary by species. A reasonable discussion could be had about whether that ongoing safety evaluation is better done in-house or by consultants. A reasonable discussion could also be had about whether tree services are better provided by city staff or private contractors.
Long-term planning for replacement of some tree species is needed as we face increasing stress from drought, high temperatures, and imminent pest problems. There are serious concerns about coast redwoods (drought), London plane and Valley oak (imminent pest problem), and others as well as the ash trees. In view of these issues, it is likely that the city’s tree programs will need more funding, in my opinion.
Don says: “In view of these issues, it is likely that the city’s tree programs will need more funding, in my opinion.”
My response: And therein lies the “rub”.
I say we need more development/sprawl to pay for tree maintenance.
HI Don:
Please cite sources when you say city is planting aggressively.
A public records request shows the City is now diverted hundreds of thousands from Tree mitigation fund (for mitigation planting) to do pruning and removal. I would appreciate any fact if tree planting up for down? Removals? Do we even know? How many tree have been removed now vs earlier times? How many Tree does city even have?
The recent elimination of tree commission to review removals allow trees to be removed with only staff approval.
Maybe things are all good, but who is speaking for trees now that the tree commission is gone? Maybe you could write a letter to editor on this?
Your friend the Lorax.
I didn’t say that. Always happy to discuss this with you in person.
“The recent elimination of tree commission to review removals allow trees to be removed with only staff approval.”
If the City’s Arborist says that a tree should be removed, then the Commissioners should have had no say in the matter. We should not have lay people overruling the professional staff as the Commissioners lack the training to make the appropriate decision.
The City Tree in front of my house, a Hackberry, was pruned on Monday, removing extensive amounts of deadwood and mistletoe. That was the first time the tree had been pruned by the City since sometime before 1995. I know that date because my South side neighbor’s City Tree (Sycamore) was planted in 1995, and Monday was the first time their tree had ever been pruned. The City’s Arborist inspected my Hackberry about four years ago and said that the tree should be removed, but nothing happened.
To say that the City’s tree program has problems is an understatement. I’m just glad that it is not my children suing the City for wrongful death.
City could have announced tree reforms post accident and not effected court findings of neglect.
As discussed in Saturday 2/15 enterprise even delayed cutting hazard tree post accidents. And delayed previously plannned reorganization from parks to public works department. This was about optics only- not limiting city liability.
Just as ending citizens Tree Commission ended transparency: now no public forum where citizen can ask question of staff.
See below:
California Code, Evidence Code – EVID § 1151
Current as of January 01, 2023 | Updated by FindLaw Staff
When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.