I am inventorying trees in and along a flood plain for an engineering firm that has a contract with the local government. This is the initial stage of a flood control project, which may or may not occur. There is no easement; the stream is walled in here and there, but wanders here and there, too, so who owns what tree is not always clear. There are some 500 trees on some 50-60 properties.
What responsibility do I have for reporting risks associated with trees? Is it sufficient for me to put high risk trees in the inventory, or is it my responsibility to tell each property owner as well? If it is not my responsibility, who's is it? (My work product will be owned by the local government.)

Reply to post by Ed Milhous, on June 01, 2000 at 07:28:26:

Hi Ed!!!

Of course you must go back to what is your assignment.

As to what are your resonsibilities to the individual property owners; I don't have to tell you that if a calamity happens and some lawyer found out you had inspected those trees, you will be brought in no matter what your assignment or responsibilities were.

In my "professional" opinion, make sure you write a strong disclaimer in your report.

Very treely,

Lew

Reply to post by lewbloch, on June 01, 2000 at 07:28:26:

Lew is right, of course. You can be sued anytime, anywhere for anything. The point is you may have to defend. I don't think that means you always have to take or be forced to accept responsibility for everything.

Contract language is important. Lew posted "and some lawyer found out you had inspected those trees..." The key word there is "inspected." You have to be very careful what characteristics your inventory is intended to discover and record. If it's the basics (size, species, location, general condition, etc.) you might spend an average of a few minutes per tree. You might or might not walk all the way around each tree. You might or might not enter each property. You might be denied access to some properties. Your client may specifcally instruct you not to enter ohter properties. Your contract language should not characterize such a limited, inventory exercise as "inspection." It should probably say specifcally that it is not an inspection. The inventory exercise should be characterized as something like "brief visual observation limited to collecting the defined data..."

That said, while you hope not to have created a duty to do a thorough "inspection" and to discover any or all hazardous conditions, you probably have a responsibility to report situations or conditions that are so grossly obvious that you find them in your "brief visual observation."

Last year I did a pre-construction inventory that included something like 400 trees. Six or so had such gross conditions that they were flagged in the inventory to be brought to the attention of the managing agency by my client's client who might or might not have been the fee owner (nobody knew or even understood it was an issue).

Even if the inventory is supposed to flag potentially risky condition (don't use the "H" word) if the time is limited to a few minutes per tree the flagging should be for the purpose of subsequent detailed "inspection" designed to assess for "H."

There have, I think, been cases that turned on the time per tree as an indication of contract intent and duty, but I can't cite them specifically. The kinds of terms and conditions described above came to my attention in that context.

Reply to post by Scott Cullen, on June 01, 2000 at 17:54:25:

Good suggestions on the "weasel wording". My contract always says I will call attention to those trees that need further investigation. In this case, it did not register with me that I would be dealing directly with neither the tree owners nor with management, but rather with a third party somewhat divorced from the owners.
I would think that, regardless of my assignment, if I saw a tree that was risky, I should bring it to soomeone's attention. So far, the ones I have found belong to the local government, and they will get my report. If I find one on private property, I might be overstepping my bounds to contact the owner without going through the engineer or local government.
Anyway, I have alerted my contact and asked him how he wants to handle it.