The U.S. Court of Appeals upheld yesterday a $975,000 award to a Washington man severely injured 10 years ago when a tree fell on his car, and said the District and federal governments have a duty to carefully inspect the tens of thousands of trees overhanging public roadways here.
Injured was Andrew A. Husovsky, of 4001 Massachusetts Ave. NW, who was a 24-year-old graduate student at Georgetown University when the 90-foot, 10-ton tree section fell on his Volkswagen as he was driving along Klingle Road NW in Rock Creek Park on a clear and calm day.
He was paralyzed in the accident and faces future kidney failure, according to doctors, who predicted shortly after the accident that he would live only a few years.
U.S. District Judge Carl McGowan, writing the opinion for the unanimous three-judge appellate panel, said a weekly "drive-through" of wooded areas by tree experts is not enough of a safeguard to protect passing motorists.
Judge McGowan rejected contentions by the District and U.S. lawyers that it would be "unduly burdensome" to require detailed inspections of the thousands of trees that might pose a danger to Washington motorists.
"Of course, averting such dangers (as falling trees or limbs) requires some expenditure and effort, but it does not follow that those responsible for maintaining the safety of public roadways may either ignore certain sources of dangers or remain passive as hazards develop therefrom," McGowan said.
"We do not think it is unreasonable to require the District with respect to its streets and the United States with respect to its urban parklands bordering public roadways also carefully to inspect enormous, overhanging trees posing the danger to passing motorists of the magnitude posed by the tulip poplar tree in this case."
A supervisor in the tree and landscaping division of the District's transporation department said it would be "virtually impossible" to check every tree in the city, and pointed out that there are 98,000 trees between the curb and sidewalks along the District's streets.
"But we, of course, try to maintain streets in a safe manner," said Bob Herr, a supervising horticulturist for the District. Herr said the division has personnel on the street regularly looking for obvious dangerous tree conditions, and that the division regularly receives complaints from police, fire and electrical company workers as well as from private citizens about tree problems.
A National Park Service spokeswoman said that since the original incident in the case before the court the park agency has its supervisors inspect certain areas of specfic parks on a daily basis and pass along any tree maintenance problems. She said that 10 to 15 trees are usually on the "danger" list for immediate action at any one time.
The court upheld the $975,000 award to Husovsky, who has since earned a doctorate in research chemistry, but said his career is limited because of his restriction to a wheelchair and other injuries suffered in the accident.
He is an editor for the American Chemical Society, and his attorney, Harry Goldberg, said Husovsky was attending an ACS meeting in Colorado yesterday. Goldberg said Husovsky reacted by saying "That's great - What happens now?" on learning of yesterday's opinion, and wondering about a possible appeal of the ruling to the Supreme Court by two governments.
No decision has been made concerning a possible appeal, a government attorney said yesterday.
The court upheld a finding by U.S. District Chief Judge William B. Bryant that the District government was negligent in failing to protect against the possible danger posed by a tree that hung over Klingle Street, and that the U.S. government was negligent because the tree's trunk was on land maintained by the government and had never been inspected.
The government must be "alert to the presence of and carefully observe at periodic intervals" trees that have a V-shaped trunk and are susceptible to weakening,as was the dutch poplar in this case, McGowan said."