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268749 WMITE - CITV CLERK ������ PINK - FINANCE GITY OF SAINT PAITL Council CANARY - DEPARTMENT Fll@ � NO. BLUE - MAYOR ncil Resolution Presented By Referred To Committee: Date Out of Committee By Date WHEREAS, a Contract For Settlement was entered into between the City of Saint Paul and Bart Leahy, Jr. and Connie Mandel Leahy, regarding the�r claims for damages arising out of an accident on West Seventh Street, west of Snelling Avenue, on December 30, 1975 when two trees located on City property fell on the car that Bart Leahy, Jr, was operating on West Seventh Street and in which Connie Mandel Leahy was a passenger, and WHEREAS, said Contract For Settlement was entered into on the record before the Honorable James M. Lynch, Judge of Ramsey County District Court, with the full approval of the Court, and said Contract For Settlement was intended as a full and final settlement for any and all claims arising out of said accident, RESOLVED, that the proper City officers are hereby directed to pay out of Tort Liability Fund No. 09070-511-000 to Bart Leahy, Jr. , - Connie Mandel Leahy and Stanley Karon, attorney, the sum of Thirty- Seven Thous�,nd Five Hundred Dollars as consideration of a full and final release to be executed by Bart Leahy, Jr. ancl Connie Mandel Leahy for the injuries and property damage they suffered in said accident, COUIVCILMEN � Yeas Nays Requested by Department of: � �_ In Favor Hunt Levine __�__ Against BY Roedler Sylvester Tedesco MpR 9 5 1977 Form Approved by City Attorney Adopted by Counc�l: Date �� � ' � Certified Passe by Co ncil Secr�tar BY By Appro Mayor: Dat � �� � 7 1977 Approved by Mayor for Submission to Council gy By pUe�iSHE� MAR 2 6 1977 . + � ' �����!� C ITY OF SAI NT PAUL OFFICE OF THE CITY ATTORNEY March 2, 1977 HARRIET LANSING T0: Members of the City Council FROM: Daniel L. Ficker �, �6�� SUBJECT: Claim of Bart Leahy, Jr, and Connie Mandel Leahy The claims of Bart Leahy, Jr. and Connie Mandel Leahy arose out of an incident occurring at about 9: 00 P.M. December 30, 1975 whereby Mr. Leahy' s vehicle, which he was operating westbound on West Seventh Street, was struck by two falling trees. The trees were located on public property in a wooded area just north of West Seventh Street and 100-150 feet west of Snelling Avenue. When the trees struck the vehicle, the roof of the vehicle collapsed onto the occupants, Mr. Leahy and his passenger, Connie Mandel. The vehicle then veered out of control across West Seventh Street and came to rest about 100 feet down the street in front of 2280 West Seventh Street . Mr. Leahy was pinned in his vehicle as a result of the trees striking it, and he had to be removed by fire department personnel. Miss Mandel, who subsequently became Mrs. Bart Leahy, was able to get out of the vehicle, but she was partially blinded from glass from the windshield which shattered when the trees hit the car. Mr. Leahy was taken to St . Paul Ramsey Hospital where he was hospitalized until January 7, 1976. Immediately after Mr. Leahy was admitted to the hospital on December 30, 1975, the doctors perf ormed an operation to remove his spleen which was ruptured in the accident. After surgery, his shoulder was placed in a splint because he had sustained a complete separation of the right acromiocl�vicular �oint in the shoulder and a rupture of the deltoid muscle . As a result of the injury to his shoulder, Bart received a 30 percent permanent partial disability rating from his physician, Dr. Ivan Schloff, and a 15 percent permanent partial 1 The acromioclavicular �oint is the �oint you can feel at the top of the shoulder. It is formed by the collarbone and the outer tip of the shoulder. It is not the actual shoulder �oint, but the joint � which is connected with the deltoid muscle, is instrumental in certain shoulder movements called abduction. City Hall, Saint Paul, Minnesota 55102 612 298-5121 . � � � ,���,��� Members of City Council March 2, 1977 Page Two disability rating from Dr . Comfort , who conducted an adverse examina- tion for the City. At this time Mr. Leahy has a full range of motion of the right shoulder, but he is unable to lift objects of any we�ght with his right arm, and he experiences pain with certain movements of the arm and when attempting to lift objects with the arm (such as lifting items from a grocery bag) . He also complains of periodic sharp shooting pains in the stomach area. Mr. Leahy' s medical and hospital bills resulting from the treatment he received after the accident, although substantial, are not overly important as far as evaluating the dollar worth of his claim. His most significant loss, which is a continuing loss, is the loss of wages up to this time and the future diminution of his earning capacity. At the time of his injury, Mr. Leahy was working regularly as a laborer with McGough Construction Company. He was described by his employer, Leo McGough, as a hard worker who, most likely, would have continued working regularly from the time of the injury to the present. His wage at the time of the injury was $7 . 75 per hour, with added fringe benefits of 85 cents an hour. The basic wage was in- creased to $8 . 20 per hour on May l, 1976 and the fringe benefits were increased to 90 cents an hour. Mr. Leahy did not start working again until the last part of October, 1976 when he was able to find employ- ment as a delivery man for a florist . His wage in his current occupa- tion is $2. 50 per hour. Thus, as of the date that the case was assigned for trial (Feb. 14, 1977) , Mr. Leahy' s special damages resulting from the accident were as follows: St Paul Ramsey Hospital $ 2, 418 . 00 St Paul Orthopedic Surgeons 265 . 00 Dr. Schloff Medical Education & Research Foundation 467 . 00 Loss of Wages (not including fringe benefits) 17 ,404 . 00 Car (approximate) 3,200. 00 Total 2 $23,754 , 00 2 This does not include Dr. Schlofffs bill which would probably be about $300. 00. � ������� Members of City Council March 2, 1977 Page Three Mr, Leahy testified in his deposition (which was taken shortly before the trial date) that he had been actively seeking employment since the spring of 1976, after the shoulder splint was taken off, but that he was unable to find any employment until he got the delivery job . In view of his disability and his previous work record, I don't believe that I could have produced (or would even have tried to pro- duce) controverting evidence. Also, in view of Dr, Schloff' s and Dr. Comfort � s reports of their examination of Mr. Leahy, there is no doubt that the injury to Mr. Leahy� s shoulder prevented him from con- tinuing in his occupation as a construction laborer, and from engaging �n any other occupation that involves physical labor. Mr . Leahy did accumulate 50--60 college credits after high school before he dropped out to work full time, but the sub�ects he took (and the grades he received) would not qualify him for any particular occupation or field of employment . In terms of what Mr. Leahy might expect from a �ury in its award for the in�uries and damages he sustained from the accident, I think that even an unsympathetic jury would have found damages in excess of $50,000. 00. 3 With reference to Connie Mandel Leahy, her injuries, although far less serious than Mr. Leahyts, are sti11 significant , As I said before, Mrs. Leahy was partially blinded immediately after the accident because glass from the shattered windshield got into her eyes. She also suffered a cut on the top of her head from the glass and cuts on her hands . She was taken to St. Paul Ramsey Hospital where the glass was removed from her eyes by means of a suction device and the cut on top of her head was sutured. Since the accident she has gone to see an opthalmologist on the average of once a month. Her present complaints are of bluri- ness and inflammation of the left eye which necessitates the constant use of eye drops. She also complains of a constant headache and pain in the neck which she attributes to nervousness resulting from the trauma of the accident . She was unable to return to work until Feb . 1, 1976 and she subsequently took off time for doctors ' appointments. She has been under the care of Dr, Loken since the accident , who has prescribed tranquilizers, apparently for her nervous condition. Mrs . Leahy was making $450. 00 a month at the time of the accident , and her total specials (wage loss, medical and hospital bills) were approxi- ma�ely $1, 000, 00 as of the date �he case was assigned for t�ial. 3 Since $50,000. 00 was the statutory limit of the City' s liability to any one person at the time of the accident , we do not have to speculate about a �ury award above that figure . ������� f .. Members of City Council March 2, 1977 Page Four It is difficult to say exactly what verdict a �ury would render in Mrs . Leahyfs case, but in my opinion it would be no less than Five Thousand Dollars and probably no more than Ten Thousand Dollars. Thus, in total we are looking at a potential liability of Fifty-five to Sixty Thousand Dollars if the jury decided the City was negligent in its duty to inspect and remove trees that present an unreasonable r�sk of harm to persons using the public streets. This brings us to the most difficult aspect of the case, and that is the issue of liability. As you can see from the copy of the Resolution attached hereto, the City entered into a contract for settlement with Mr. and Mrs. Leahy on February 16, 1977 to pay them Thirty-Seven Thousand Five Hundred ($37,500. 00) Dollars as a full and final settle- ment of their claims against the City. This settlement was not agreed to until T rece3ved the authorization of the City Attorney, and only after I became convinced that there was little chance that the City could w�.n the case. T will outline for you my considerations in recommending the settlement amount to the City Attorney. The law governing the City' s duty to inspect and remove hazardous trees near a public highway is perhaps best stated in Section 363 subd. 2 of Restatement of Torts (2nd) . That section reads : "A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway. " The first, but not the only, problem with the defense of the case was that the two trees that fell on Mr. Leahy' s car had been marked for removal in October, 1975 by one of two city employees because they were dead. The trees were scheduled for removal during the winter months when the City crews were not so busy with inspection and re- moval of trees in residential neighborhoods. An inspection of the trees by Dr. David W. French, a professor in plant pathology and horticulture at the University of Minnesota, indicated that the trees had been dead for sometime preceding the accident, as evidenced by the root system, the ma�or parts of which were completely decayed and the other parts which were partially decayed. The trees were approxi- mately 40-50 feet in height and were located 25-30 feet from the edge of the roadway. The trees fe11 because of the decay in the root sys- tems, the point of failure being about 2 feet below the ground. Accord- ing to Dr, French, the root decay was caused by a root-rotting fungus called Armillaria mellea, which is a common invader of dead oaks. It was evident to Dr. French that the tree had been dead for some time be- cause of the advanced decay process in the root system, a process that ������ Members of City Council March 2, 1977 Page F ive he determined had been underway for at least 5 years preceding the accident. Dr. French also said that the sapwood 4 was completely decayed around the tree, indicating that the tree had been completely dead for more than a year preceding the accident . Dr. French in- d3,cated that the tree may have shown some signs of life as late as 1974 if the smaller roots were still feeding nutrients to the tree, but that the crown of the tree (the branches above the trunk) would have reflected the death of the major roots a year or two after decay set in. Dr. French said that there is no way to determine the extent of the decay of the root system of a tree without digging down to the roots and examining them, but you can get a pretty good idea of the extent of the decay by examining the sapwood portion of the tree . This would involve, at the most , cutting into the tree in a couple of places on opposite sides of the tree to see if the armillaria mellea fungus was present in the sapwood. If the inspector found that the fungus was present on both sides of the tree, he could be pretty sure that the roots were badly decayed. Dr. French also said that in his exper3.ence it takes from five to seven years after an oak tree dies (in thiscase after the ma�or roots die) for the tree to fall, and that the common method of falling is by the tree uprooting itself. The question of liability thus boils down to the reasonableness of the City� s inspection system at and before the time the trees were marked for removal. There is no question that the trees were close enough to West Seventh Street to cause a hazard if they did fall before they were removed, It is apparent that the trees showed signs of being dead for three to four years before the accident and that they were completely dead for more than a year before the accident. The policy of the C3ty in the years pr�or to the accident was to concentrate on tree trimming and removal in the boulevard areas of the City where the Ci�y could recoup a portion of the cost of trimming and removal from the assessment system, and, also, where the City was most concerned about controlling the spread of dutch elm disease. Little attention was paid to trees in the wooded areas except to respond to citizen complaints about dead or diseased trees. The City did have constructive and actual notice of the condition of the trees as it was in the area several times prior to October of 1975 for the purpose of inspecting 4 This is the cyclindrical portion of the tree directly under the bark which is the live part of the tree as opposed to the center of the tree which is dead. The same root-rotting fungi also attacks the sapwood in the lower trunk of the tree. - ���`��� Members of C3.ty Council March 2, 1977 Page S�;x trees, tri.mming boulevard trees, and removing diseased or dangerous treesR Tn the summer of 1973, the City crews were working on West Seventh Street inspecting, trimming and pruning boulevard trees, and they would have at least inspected the boulevard trees that were across the street from the wooded area where the two trees were located, On November l, 1974 the City crews were in the wooded area within a hundred to two hundred feet of the two trees removing a dangerous elm tree and trimming other trees in the immediate area. In July and September of 1975, city tree inspectors checked elm trees in the back yards of 2276 and 2280 West Seventh Street . In the fall of 1974, city inspectors conducted "dr3ve-by" inspection from the roadway of the wooded area looking for d3seased trees. Lastly, the City inspectors walked through the wooded area marking diseased elm trees and oaks for removal.� During the latter inspection, the emphasis was on marking d3seased elm and oak for winter removal and not making any particular inspect�on to determine if the trees close to the roadway presented any unreasonable hazard to persons using the roads. Although the City' s trimming and removal program certainly makes sense to me from an economic standpoint, it is pretty much indefensible from a liability standpoint with regard to the claims of Bart and Connie Leahy. Tt is reasonable to assume that if the person who marked the trees for removal in October, 1975 had made more than a cursory in- spection of the trees, he would have been aware that the trees presented an unreasonable hazard to persons using West Seventh Street . It is also reasonable to assume that if the City had paid more than minimal attention to the wooded area it would have known that the tree was dead a minimum of three or four years before it actually fell. The mere fact that no one made a complaint about the specif�c trees that caused Mr. and Mrs. Leahy� s in�uries does not lessen the City duty to take reasonable steps to protect the public from the obvious hazards of dead trees. I liken this case in some respects to that of a sidewalk fall-down. As a rule, the City does not inspect public sidewalks for defects except upon complaints of homeowners or other persons using the side- walks. Instead, the City' s position is that it costs less to pay sidewalk claims out of the tort liability budget than it would cost to inspect and repair every sidewalk that has a crack, a hole, or some other defect that may cause an accident. Historically, that position has proven economically sound. The City� s tree trimming and removal program has probably proved economically and practically sound (at least up to this time) in that concentrating the inspection, trimming and removal efforts in the residential boulevard areas provides some return of the money spent for trimming and removal, and it provides This was the October� 1975 inspection. � , . Q�+.� � r� r�"�?,���,1. � � Members of City Council March 2, 1977 Page Seven the most protection to the trees in the residential areas. Un- fortunately, the extra cost that may be incurred to keep the roadways safe from hazardous trees is not a factor that can be considered in determining the City�s liability for damages sustained by persons injured by the hazardous trees . In view of all of the above, I was (and am) convinced that by entering into a contract of settlement with Mr, and Mrs . Leahy in the sum of $37,500. 00 T could save the City about $20, 000. 00, that being the excess amount that a jury would award in their verdict. I recommend this settlement for your approval. Th3s settlement was entered into on the record before the Honorable James M. Lynch and had the full approval of the Court .