PITTSBURGH – Blystone Tree and Landscaping is seeking to add a Tennessee company to a lawsuit which claims that itself and a pair of Pittsburgh homeowners are liable for injuries that a local man suffered, when an oak tree on the defendants’ lawn collapsed and fell on him during his run.
Steven L. Orebaugh and Jennifer Orebaugh first filed suit in the Allegheny County Court of Common Pleas on Jan. 28 versus Blystone Tree and Landscaping, Inc. All parties are of Pittsburgh.
(Homeowners David A. Mosey and Gertrude Van Kirk were later joined as defendants.)
Mosey and Van Kirk own a residential property in Pittsburgh, upon which several trees were located, including a large oak tree in the front yard, rooted near a driveway that had been excavated after the tree had been growing for many years.
Mosey and Van Kirk contracted with defendant Blystone to perform landscaping services at the property, such as pruning and/or trimming the trees located there, including the aforementioned oak tree, and to assess the trees for structural integrity and risk for potential collapse.
“Prior to Oct. 7, 2019, defendant Blystone appeared at the property to prune and/or trim trees located on the property on approximately four occasions. In the course of performing landscaping and tree services on the owner’s property, defendant Blystone assessed and/or should have assessed the oak tree for numerous conditions, including potential collapse and/or a lack of structural integrity and/or alteration of its anchoring root service from the driveway excavation and/or disease,” the suit said.
“The oak tree exhibited risk factors for structural delay and/or collapse, including but not limited to the presence of fungus and/or mushrooms around the base of the tree.”
Despite the alleged presence of risk factors for structural decay and/or collapse prior to the date in question, defendant Blystone did not remove the oak tree and never informed and/or alerted owners of these risks and/or any dangers associated with these risks or posed by the diseased oak tree.
On Oct. 7, 2019, plaintiff was jogging on the public roadway in the vicinity of the owner’s property. Suddenly and without warning, the oak tree fell into the roadway, violently striking plaintiff and pinning him under the tree.
“As a result of being struck by the oak tree, plaintiff lost consciousness and suffered numerous injuries, including a displaced intertrochanteric fracture of the right femur, a displaced fracture of the lateral end of the left clavicle, a right second rib fracture, a pneumothorax with chest hematomas, a concussion and subdural hematomas resulting in vestibular and ocular dysfunction and cognitive fatigue,” per the suit.
“These injuries required plaintiff to be transported by ambulance to a nearby hospital emergency room, where plaintiff ultimately required surgical intervention to repair his orthopedic injuries.”
Attorneys for Blystone Tree and Landscaping, Inc. filed an answer to the complaint on Feb. 18, which denied the plaintiffs’ version of events and asserted several affirmative defenses.
“Should evidence be developed during the course of preparation of the trial of the case or at the trial of the case, Blystone Tree reserves its right to assert the affirmative defenses to bar in whole or in part the plaintiffs’ cause of action, based upon the doctrines of comparative negligence, superseding and intervening cause and assumption of risk as they may be proven relevant to the incident as described in the plaintiffs’ complaint,” the new matter said.
“Blystone Tree avers that the incident as described in the plaintiffs’ complaint was a result of the actions and failings of others for whom this defendant has no legal responsibility. To the extent that evidence develops to support the same, Blystone Tree avers that the plaintiffs have failed to mitigate their damages.”
Additionally, Blystone Tree joined Mosey and Van Kirk as official defendants to the case, arguing that they were liable for the injurious actions at issue.
Counsel for additional defendants Mosey and Van Kirk filed an answer, new matter and cross-claim in the case on March 15, denying Blystone Tree’s version of events and asserting it was responsible for the incident in question – through not abiding by the terms of its oral contract with them.
“These additional defendants aver Blystone Tree and Landscaping, Inc., was negligent so as to cause this accident, including but not limited to, failing to inspect the subject oak tree which fell, failing to detect signs of disease, deterioration and decay necessitating its immediate removal of the same, and failing to advise the additional defendants who hired defendant Blystone Tree and Landscaping, Inc., and relied upon their knowledge, experience, training and expertise,” the answer stated.
Additionally, Mosey and Van Kirk countered that liability for the incident rests solely with Blystone Tree through a cross-claim, as they alleged its negligence led to the tree falling onto the plaintiff.
Blystone Tree’s counsel replied to the answer and new matter the following day, March 16, denying it as a conclusion of law to which no further response was necessary.
UPDATE
Blystone Tree filed a motion to join an additional defendant, TruGreen, Inc. of Memphis, Tenn., on July 14.
“TruGreen should have identified the presence of disease on the subject tree identified in the plaintiffs’ complaint, to the extent that disease existed and was present during the period of time that servicing was provided to the Mosey Parties,” the motion stated.
“It is believed and therefore averred that if disease was present on the subject tree as identified in the plaintiffs’ complaint, TruGreen was negligent in failing to identify the presence of the disease, and in failing to inform the Mosey Parties that appropriate action should be taken to prevent the later incident as described in the plaintiffs’ complaint. Additionally, the failure to perform those services as alleged by the written terms of its documents including the failure to identify any disease on the incident tree, to the extent that it was present, constitutes a breach of contract by TruGreen.”
For counts of negligence and loss of consortium, the plaintiffs are seeking damages in excess of the arbitrational limits of this Court, plus interest, costs and such other relief as the Court may deem just and proper, and a trial by jury.
The plaintiffs are represented by Jon R. Perry of Rosen Louik & Perry, in Pittsburgh.
The defendant are represented by Mark A. Eck of Tucker Arensberg and Paul J. Walsh III of Walsh Barnes & Zumpella, also both in Pittsburgh.
Allegheny County Court of Common Pleas case GD-21-000863
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com