PITTSBURGH – A Tennessee company has rebuffed an attempt from Blystone Tree and Landscaping to add it 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.”
Blystone Tree later 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.”
UPDATE
TruGreen filed an answer and new matter (plus a cross-claim assigning liability to its co-defendants) on Oct. 6.
“Any and all damages allegedly sustained by the plaintiffs are the direct and proximate result of the conduct of other persons, parties and/or forces over which this defendant is not responsible and did not control,” the answer stated.
“Plaintiffs’ complaint and original defendant’s complaint to join TruGreen Limited Partnership fails to state a claim upon which relief can be granted against this defendant. To the extent that evidence may reveal as such, plaintiff-husband has failed to mitigate his damages. This defendant reserves the right to plead or prove any and all other affirmative defenses as may be warranted.”
On Oct. 11, counsel for Mosey and Van Kirk denied TruGreen’s new matter and cross-claim as legal conclusions to which no official response was required.
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