Premises Liability
Failure to maintain tree resulted in paralysis, plaintiff claimed
| (P) $7,675,589.00 | |
| Negligent Repair and/or Maintenance, Premises Liability - Dangerous Condition of Public Property, Premises Liability - Tree | |
| Michael Burke and Edith Burke v. City of San Diego, West Coast Arborists, Inc. and Brian J. Wright, No. 37-2011-00086969-CU-PO-CTL | |
| Superior Court of San Diego County, San Diego, CA | |
| Ronald L. Styn |
|
| 12-21-2012 |
- Daniel K. Balaban; Balaban & Spielberger, LLP; Los Angeles, CA, for Michael Burke, Edith Burke
- Browne Greene; Greene Broillet & Wheeler, LLP; Santa Monica, CA, for Michael Burke, Edith Burke
- Ivan Puchalt; Greene Broillet & Wheeler, LLP; Santa Monica, CA, for Michael Burke, Edith Burke
- Andrew J. Spielberger; Balaban & Spielberger, LLP; Beverly Hills, CA, for Michael Burke, Edith Burke
- Howard Pitchon M.D.; Internal Medicine; Beverly Hills, CA called by: Daniel Balaban, Browne Greene, Ivan Puchalt, Andrew Spielberger
- Sharon Kawai M.D.; Physical Medicine; Fullerton, CA called by: Daniel Balaban, Browne Greene, Ivan Puchalt, Andrew Spielberger
- Carol Hyland M.A.; Vocational Rehabilitation; Lafayette, CA called by: Daniel Balaban, Browne Greene, Ivan Puchalt, Andrew Spielberger
- David Cossman M.D.; Vascular Surgery; Los Angeles, CA called by: Daniel Balaban, Browne Greene, Ivan Puchalt, Andrew Spielberger
- Ronald Fisk M.D., Ph.D.; Neurology; Los Angeles, CA called by: Daniel Balaban, Browne Greene, Ivan Puchalt, Andrew Spielberger
- Robert Klapper M.D.; Orthopedic Surgery; Los Angeles, CA called by: Daniel Balaban, Browne Greene, Ivan Puchalt, Andrew Spielberger
- Edward Aguado; Meteorology; San Diego, CA called by: Daniel Balaban, Browne Greene, Ivan Puchalt, Andrew Spielberger
- Peter Formuzis Ph.D.; Economics; Santa Ana, CA called by: Daniel Balaban, Browne Greene, Ivan Puchalt, Andrew Spielberger
- Robert Wallace; Arboriculture; Simi Valley, CA called by: Daniel Balaban, Browne Greene, Ivan Puchalt, Andrew Spielberger
- Jane M. Boardman; Office of the City Attorney; San Diego, CA, for City of San Diego
- Keith W. Phillips; Office of the City Attorney; San Diego, CA, for City of San Diego
- None reported; null, null, for West Coast Arborists, Inc., Brian J. Wright
- Elizabeth Holakiewicz R.N.; Life Care Planning; Carlsbad, CA called by: Jane Boardman, Keith Phillips
- Donald Hodel; Horticulture; Los Angeles, CA called by: Jane Boardman, Keith Phillips
- Donna Crowley M.D.; Physical Medicine; National City, CA called by: Jane Boardman, Keith Phillips
- Jay Rosenthal M.A., C.C.M.; Meteorology; Pacific Palisades, CA called by: Jane Boardman, Keith Phillips
- Laura Fuchs-Dolan M.B.A.; Accounting; San Diego, CA called by: Jane Boardman, Keith Phillips
- self-insured City of San Diego
On Jan. 21, 2010, plaintiff Michael Burke, 57, a lawyer, discovered that a 60-foot queen palm tree had fallen and crushed his car outside his San Diego home. He subsequently called a friend for a ride to work and, while placing his computer in the back of his friend's car, was struck by a second falling tree, which weighed nearly two tons. Both of Burke's legs were crushed, rendering him a paraplegic.
Burke sued the city of San Diego, West Coast Arborists Inc. and Brian Wright. He alleged that the tree was located on Wright's property, but that the city was responsible for maintaining it and hired West Coast Arborists to perform the tree trimming. Thus, he alleged that the defendants were negligent in the maintenance of the tree, creating a dangerous condition of public property.
Prior to trial, West Coast Arborists was dismissed from the case once it was learned that it did not have a contract with the city. In addition, Wright agreed to settle for $300,000 and was let out of the case. Thus, the matter proceeded to trial against the city only.
Burke's counsel contended that the second palm tree that struck Burke was in the city's right of way and, according to the plaintiffs' expert arborist, was considered a dangerous condition due to the tree's 70-year age and lack of an adequate root structure. Plaintiffs' counsel also contended that the city had notice of the dangerous condition when its chief urban forester observed the scene after the first palm tree fell on Burke's vehicle approximately two hours before the second tree fell.
The city denied that it owned, maintained or controlled the alleged tree or the property where the accident occurred. It also denied that the palm tree that struck Burke was dangerous before the accident and denied that it had notice of the alleged dangerous condition prior to the tree fall. In addition, the city denied that it created a dangerous condition prior to the accident.
Burke was struck by a two-ton tree, crushing both legs, with fractures to the pelvis, femurs, tibias and knees. He was subsequently taken from the scene of the accident by ambulance and brought to an emergency room. He then underwent 19 total surgeries, including the reconstruction of both legs, skin grafting, and vascular surgeries for severed popliteal arteries. During the procedures, he was hospitalized for eight months. However, despite the surgeries, Burke was rendered a paraplegic, resulting in little to no movement or strength below his knees.
Burke ultimately returned to work as an attorney, but is now wheelchair-bound and may require an amputation of both legs at the knee. Thus, he sought recovery of damages for past and future medical costs, lost earnings, and past and future pain and suffering. His wife, Edith, presented a derivative claim, seeking recovery of damages for her loss of consortium.
The jury found the city 100 percent at fault, and awarded Burke and his wife $7,675,589 in total damages.
Edith Burke
$500,000 Personal Injury: loss of consortium
Michael Burke
$1,200,589 Personal Injury: Past Medical Cost
$2,200,000 Personal Injury: Future Medical Cost
$31,000 Personal Injury: Past Lost Earnings Capability
$144,000 Personal Injury: FutureLostEarningsCapability
$1,500,000 Personal Injury: Past Pain And Suffering
$2,100,000 Personal Injury: Future Pain And Suffering
Defense counsel will file motions for judgment notwithstanding the verdict and for a new trial.
This report is based on information that was provided by plaintiffs' and defense counsel.
