Court rejects claim that landowner owed duty to investigate health of tree after "bus-size" limb fell causing death
Joseph A. Clock was killed when a large limb fell from the property of Neal and Susan Kemp and struck him on an adjacent sidewalk. Clock's family sued for wrongful death, arguing that after a bus-sized limb fell several years earlier, the Kemps owed a duty to investigate the health of the tree and the danger to people using the sidewalk. They relied heavily on the testimony of an arborist who testified that the weakened and unsafe condition of the tree would have been apparent if the tree had been examined by a professional.
In a very disappointing decision, the majority of the Court of Appeals repudiated the family's claim. Judges O'Connell and Owens refused to consider the testimony of the family's arborist-expert because they could not find the deposition pages in the record provided by the lower court on appeal. The dissenting judge noted that the testimony was quoted at length in the family's brief, that it was cited in the lower court's opinion, and that the Defendants did not object to the testimony or ask that it be stricken. Under the circumstances, this material testimony under oath was rejected and the case was dismissed without allowing the family the opportunity to investigate or explain why it was not part of the Circuit Court record.