On November 3, 2007 the male plaintiff, age 72, was traveling in his car down Bayview Avenue in Bristol, Rhode Island, when a large Norway Maple tree fell over, crushing his vehicle and causing injury to his neck. The Plaintiff retained the offices of Brian Cunha and Associates to investigate the cause of the accident. Brian Cunha & associates retained an Arborist expert to review the condition of the tree at the time it fell. The expert, through photographs and discovery was able to determine that the tree was visibly rotten which should have been obvious to the tree warden for the town and should have been either treated or maintained and the failure to do so was negligent
The Plaintiff through Brian Cunha & Associates sued the Tree Warden, an unpaid position, for the Town of Bristol and the private tree servicing company that serviced and inspected the trees for the Town of Bristol. It was learned during the case that the tree Warden for the Town was also the president of the private company that inspected and maintained the trees for the Town of Bristol, which was paid an average of $86,000.00 per year to do so.
The Plaintiff claimed that both the tree warden and the tree wardens private company were negligent. The Plaintiff claimed that the tree warden was negligent for not doing his job and his tree company as an agent of the tree Warden.
Incredibly, the tree company, filed a Motion to dismiss the claim against it claiming that the corporation owned by the tree warden was protected from suit because it was the duty of the tree warden to maintain the trees and not the company owned by the tree warden.
As to the town, it maintained that the duties of the tree Warden were discretionary in nature and therefore they were immune from liability as it was a matter of discretion on the part of the tree warden to inspect the trees or remove them and in any event the damages against a city or town or its employees in Rhode Island are capped at $100,000.00
Not unsurprisingly, both the town and the tree wardens company lost their motion to dismiss and the Plaintiff successfully convinced the two insurers that there were serious questions of conflict of interest concerning the duties performed by Tree Warden because at the same time he served as Tree Warden, he was also engaged as president of his company for pecuniary gain. The Plaintiff’s case settled for $140,000.00 despite the argument that damages were capped at $100,000.00 against a city or town under RI law.