Here is the 4th installment of Gerald W. Ittig’s legal problems:
Situation 4: Back to the roots
The drawings show the routing for underground cable to run power to the homeowner’s new pool house. You trench for the cable as indicated and, in the process, cut through the roots of a 100-year-old tree. A year later, the tree falls in a storm because of its weakened root system.
A. You are not liable for the damage. By performing in accordance with the plans, you have fulfilled your contractual obligations.
B. You are liable. Once the subsurface conditions (roots) became known, you should have stopped and asked for instructions.
C. You are not liable. The presence of the tree was known to the owner who took the risk with the trenching route.
D. You are liable. By cutting the roots, you created a risk of serious personal injury and property damage.
Replies
b.(modified)... i'd make sure the Owner signed off at least verbally to the potential root damage
liability would be determined by a suit... win or lose.. who needs the agravation ?
Gerald W. Ittig's legal problems
Mr Ittig needs to find another line of work if he keeps having alll these problems.
Surely someone used spray paint to layout the path of the conduit for the trencher. And surely someone would have noticed that it came very close to the tree.
"Put your creed in your deed." Emerson
"When asked if you can do something, tell'em "Why certainly I can", then get busy and find a way to do it." T. Roosevelt
>>Surely someone used spray paint to layout the path of the conduit for the trencher. And surely someone would have noticed that it came very close to the tree.
Wait... how sure are you of those two things? Maybe the excavator's last three jobs were lot clears where no trees remained. Maybe the site super was off that day to attend a memorial service. Maybe an intern from the local tech college was given the plans so that utility cuts could be marked. Maybe the operator just did what the ground paint showed. Maybe the plans said nothing about preserving the tree.
On a good day someone would be paying attention and would notice all this. Unfortunately, even on the small residential work that most of us are doing, you have to watch like a hawk to try to prevent anything from happening.
E. you become a hero in the eyes of the homeowner because the roots you cut didnt tear up any of the line to the pool house when the tree fell.
He did spend over a hundred and fifty G's on after all.
Its hard to say because you didnt specify who authorized the route. If it was the home owner I would say B-ish but not necessarily.
If it was an engineer thats another thing alltogether.
Who drew the plans for the trench route? I've worked in jurisdictions where any excavation within a tree's drip line (the circumference of the canopy) had to be approved by a certified arborist.
Who is Gerald Ittig, and what was his role in this little scenario? If he is/was the GC, it could be argued that he should have known about any permit issues regarding excavation under trees. If he's the guy on the backhoe (or ditch witch), he can probably point the fickle finger of fate at the person who signed the plans (or told him to go thataway)
C.
If you don't take the time in the future to unveil the actual point to this I will hunt you down.
I am going out of my way to just aswer the questions the way you have posted them, without raising the obvious problems, you better be leading up to something good.
Remodeling Contractor just on the other side of the Glass City
Dave 45, Gerald Ittig is a construction lawyer in D.C. He writes a column in Electrical Contractor Magazine and this month he posed these six questions. I felt that these would stir up some debate and thinking among the members of this business forum.The answers will appear in next months issue. What is your vote?
JHole, I have no idea of what the answers may be. But I welcome your guesses, opinions and experience.
In our society, we have a tendency to try to find the cause of these accidents. And this is good since we can use that knowledge to prevent them from happening again in the future. But sometimes the lawyers/clients go too far and try to extend the causes into blame. It's always someone else's fault. And there's always this Monday morning quarterbacking. Hindsight is always 20-20.
In the present case of the poor tree, the trencher could cut off a few, small, outer roots with no effect. Cutting a large tap root close to the trunk should have forseeable results. But then for a simple conduit, then it could have been routed under the root with a little hand digging.
~Peter
AWWWWW Man.
So now I have to wait a month to find out.
Great, well, I'm in this far so keep 'em comin'.Remodeling Contractor just on the other side of the Glass City
G: It was an "act of God".
The better lawyer wins.
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In general, I would not expect a guy digging a ditch to know enough about trees to know how much damage is being done.