California Fire Cases as An Arborist Expert Witness
In Tree Case Management, we are a professional arboricultural consulting firm providing analysis, testimony, and litigation support services in evaluating damages and developing cost appraisals. Clients include attorneys, corporations, government agencies, neighborhood councils, property managers, landscape architects, and professions within the construction industries. We have successfully completed over 1200 cases throughout California with services ranging from wild land fire expert witness testimony to specialized landscape damage loss analysis, and tree root & infrastructure management conflicts.
We have extensive expert witness services assessing fire damage and claims associated with over 200 cases in multiple fires throughout California. The assignments required extensive damage documentation, repair and mitigation cost analysis, and direct participation in mediations, settlement conferences, and court cases.
When trees conflict with energized lines, a lot can go wrong. The consequences of this type of occurrence can include power outages or blackouts, fires and, most tragic, accidental injuries or deaths.Avoiding these scenarios is among the principal reasons the utility industry spends billions of dollars annually on utility vegetation management (UVM). These efforts over the years have reduced significantly the number of serious incidents’ involving these tree and power line conflicts.
Despite utilities’ best efforts, however, things can and will go wrong. During the aftermath of these events, a utility can expect to end up in front of a judge or jury to explain how it could not have prevented an occurrence or at least how it acted reasonably in trying to prevent it. This is where an experienced arborist dealing with numerous fire cases can help.
TYPES OF TREE, POWER LINE CONFLICTS
Tree-related incidents are the most common cause of routine outages and a significant contributor to large-scale blackouts, such as the one that affected large parts of the Northeast in 2003.Although tree-related fires are comparatively rare, when they happen they are among the most devastating types of fires as we have recently noticed.
Tree-related fires frequently occur at times that already are conducive to the spread of fire: during hot, dry and windy conditions. In a recent group discussion, participants from large investor-owned utilities ranked the possibility of a massive fire after a tree-power line conflict No. 2 on their list of most-feared catastrophic incidents, second only to a nuclear power plant accident.In recent years, judgments and settlements related to these types of events have climbed steadily into the billions of dollars. Fire claims, for example, even have prompted insurance carriers to stop providing umbrella insurance to certain utilities and service providers.
THE SIX DEADLY MEMES
Utility Consulting studies have shown that most large utilities acknowledge a disconnect between the industry standards for vegetation management and the public’s perception.Contained within this disconnect are at least six common but false memes that routinely show up in court and regulatory cases in the aftermath of tree and power line incidents. These are routinely assumed, albeit erroneous, beliefs held by most laypeople, including those on juries:
- Every tree within falling distance is inspected routinely and comprehensively. Plaintiffs often have made this claim in cases where a tree fell from outside of normal clearing limits and caused a fire or accident. From this starting premise, plaintiffs might argue that a utility did not meet the appropriate standard of care by failing to identify a problem tree. Contrary to this erroneous meme, utilities do not routinely inspect every tree that could fall through electric lines. A quick method to dispel this myth is to drive down a typical road and identify every tree that could fall through the lines. It should become apparent quickly that to accomplish 100 percent of these inspections, a utility would have to take ownership of a large percentage of urban and rural forests.
- Tree failures can be predicted easily. This premise assumes that any old arborist would have known a particular tree would fail and was a hazard. No qualified arborist or tree expert, however, would suggest it is possible to predict all tree failures. It is recognized widely within the industry that neither the expertise nor technology would enable accurate prediction of all tree failures, as reflected in disclaimers found in all hazard tree guides and best practices publications. This fact is compounded by the impact of winds on trees. Research is underway to understand tree failures better, but a completely healthy tree with no visible signs of decay, rot or structural defect can shed limbs or fail completely when winds exceed 39 mph.
- Utilities are obligated by lawto prevent all tree-related problems. This common belief demonstrates how little those outside the industry understand regulatory requirements and the responsibility placed on utilities. For transmission voltages, utilities generally must maintain prescribed clearances and address hazard trees within their defined easements, per the North American Electric Reliability Corp.’s (NERC’s) FAC-003. The principal regulatory requirements for distribution lines are found in NESC Rule 218 and are adopted or not by state. NESC Rule 218 does not require utilities to prevent all tree-related incidents or to remove all trees that could cause such incidents. NESC Rule 218 recognizes that “it is not practical to prevent all tree-conductor contacts on overhead lines.”
- Utilities have the right to prevent all tree-related problems. Plaintiffs often assert that utilities have the right to enter private land to inspect, remove or prune any trees near overhead lines. This is false. Even where utilities have documented easements, they have met resistance from property owners. In two recent cases in California and Ohio, utilities faced years of litigation with property owners over their right to remove or prune problem trees, despite that the utilities had documented easements across the properties with documented rights to remove trees.
- The trees were there first. Another common belief is that tree-related incidents are caused by the utilities’ placement of power lines. In our experience, most tree-related incidents are initiated after property owners’ plant incompatible vegetation near existing power lines. Put differently, many of these conflicts occur from bad planting choices completely outside the utilities’ control.
- Utilities should prune rather than remove incompatible trees on transmission rights of way (ROWs). The public often assumes frequent pruning can remedy the danger caused by incompatible vegetation on transmission ROWs; however, the forced frequency with which trees must be pruned affect the health of the trees and lead to even more dangerous conditions. Allowing any incompatible vegetation on ROWs is contrary to everything the industry knows about proper UVM. It is costly to everyone, and it was a principal contributing factor of the 2003 Northeast Blackout.
In Tree Case Management our team comprises of Registered Consulting Arborist, Certified Arborist, Plant Health Care professionals, and landscape contractors who have assessed post-fire vegetation damage for large loss claims associated with the Witch Creek/Gueijito (247,800 acres and over 140 cases), the Rice (9472 acres and over 20 cases), the Round Valley/Swall Meadows (7000 acres and over 40 cases), the Way (4045 acres and 16 cases, The Thomas (281,983 acres), and the Woolsey (97,000 acres) wildfires.
Our analysis includes many types of remediation assessments, extensive damage documentation, repair and mitigation cost analysis, and direct participation in mediations, settle conferences, and court cases. We apply a variety of methods to arrive at a value for trees. We select the most appropriate method such as reasonable replacement, the trunk formula method, cost to repair, or replacement cost to evaluate damages based on the species, site, pre-causality condition, placement and loss. Regardless of the damage, our team is able to assess trees and landscape vegetation even after they have been removed or damaged for several years.
Greg Monfette, owner of Tree Case Management, has served as an expert witness performing forensic work for cases up to $20,000,000. He has testified at bench and jury trials, at over 80 depositions, and 40 mediations and arbitrations.