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Angell v. Orrick

Superior Court of Maine, Lincoln

August 23, 2017

WILLIAM C. ANGELL, Plaintiff
v.
MARGARET H. ORRICK, Defendant

          WILLIAM ANGELL - PLAINTIFF 48 CHESTNUT STREET APT 2 ANDOVER MA 01810-3625 Attorney for: WILLIAM ANGELL NEAL WEINSTEIN - RETAINED LAW OFFICES NEAL WEINSTEIN

          MARGARET ORRICK - DEFENDANT 48 MYSTIC VALLEY PARKWAY ARLINGTON MA 02474 Attorney for: MARGARET ORRICK J WILLIAM DRUARY JR - RETAINED MARDEN DUBORD BERNIER & STEVENS PA LLP

          ORDER ON PENDING MOTIONS

          William R. Stokes, Justice

         INTRODUCTION AND BACKGROUND

         Before the court for resolution arc the following: (1) Defendant's Motion for Summary Judgment filed on April 25, 2017 and; (2) Defendant's Motion In Limine to Preclude Plaintiffs Designated Liability Expert from Testifying at Trial filed on April 24, 2017. The Plaintiff has filed oppositions to both motions. The basic facts are not disputed.

         The Defendant, Margaret Orrick, is the owner of property located at 3007 Bristol Road in New Harbor, Maine. Located on Defendant's property is a tree (either an American Linden or a Red Maple) some branches of which grew over Bristol Road. On June 28, 2014 the Plaintiff, William Angell, was driving along Bristol Road in his convertible automobile when a large portion of the Defendant's tree overhanging the road broke off and crashed directly onto him, causing him personal injuries. The tree on the Defendant's property has been growing there since approximately 1920.

         The Defendant has never received any reports or complaints from any source regarding the condition of the tree, and no violations or warnings have been issued to her from any governmental entity with regard to the maintenance of her property or the tree that grew there. Central Maine Power Company performs tree trimming around its power lines in 5-year cycles and performed tree trimming in 2012 along Bristol Road where the Defendant's property is located.

         The Plaintiff has designated Steven B. Nichols, a licensed arborist, as an expert. Mr. Nichols has been in the tree business virtually all his life, as were his father and older brothers. During his deposition, Mr, Nichols testified that he had driven by the tree on Bristol Road at the Defendant's property for 20 to 30 years, and that as a licensed arborist he had noticed that the tree was in poor condition and suffering from rot. He stated that there were indications of rot, "not visible rot, " He testified that as he drove by the tree he frequently wondered as to when the tree would come down because he could tell: "it was just a mess. It was a really bad tree. The whole base was all rotted out."

         In his deposition Mr. Nichols talked about the tree being "three-stemmed" which means that it had V-grooves" that collected water which would freeze, then unfreeze, then re-freeze, thereby causing stress on the tree. This was also a source of insect infestation. He stated: "it was just so blatantly obvious every time you went to watch out and get by this tree because at any time she's coming down, you know." Mr. Nichols acknowledged that a tree "that's rotten on the bottom will still have nice green leaves and everything on top." He stated that the poor condition of the tree and the extensive rot to the base of the tree was "obvious" to him because he was a licenses arborist. Over objection, however, Mr. Nichols also testified that the rot on the tree would be "obvious" to "[a]nybody who drove by and looked at it." As to the cause of the tree falling, Mr. Nichols opined that the base of the tree was so rotted that it could not handle the weight of the tree as it grew taller.

         Early on in his deposition, it was discovered that the initial report prepared by Mr. Nichols after a brief visit to the property was erroneous because it was based upon an assessment of a different tree. Later, after his deposition, and in a report dated April 6, 2017, Mr. Nichols stated: "[t]he condition of the tree was very poor, and this was readily apparent and visible to anyone looking at the tree, The fact that the leader was so bent over, was also cause for concern, and readily apparent to anyone who saw the tree driving by the property, such as myself" The Defendant has objected to this report and has requested that the court not consider it. The court has made reference to it here in order to place into context both the motion for summary judgment and the motion in limine with respect to any testimony by Mr. Nichols.

         Mr. Nichols did not recall telling anyone of his observations of the tree in question, including the Defendant.

         In a 5-count Complaint against the Defendant filed on January 14, 2016, the Plaintiff has sought damages for the injuries he suffered on June 28, 2014. Count 1 alleges negligence. Count II alleges a failure to inspect and maintain by the Defendant, specifically the tree that posed a dangerous condition to persons using a public road. Count III alleges a failure to warn persons of the dangerous condition of the tree overhanging the road. Count IV alleges res ipsa loquitor, i.e., inferred negligence by the nature of the incident itself. Finally, Count V alleges nuisance.

         The court agrees with the Defendant that Counts I-ITJ and Count V (nuisance) all sound in the tort of negligence and the crucial issue is to Identify what duty, if any, the Defendant had with respect to the tree that caused the Plaintiffs injuries.

         SUMMARY ...


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