PITTSBURGH – A Tennessee company is fighting liability claims from other defendants in a lawsuit which claims that itself and a pair of Pittsburgh homeowners are responsible 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, 2021, 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.
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.”
TruGreen replied with an answer, new matter and a cross-claim asserting liability on behalf of their 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. 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,” the answer stated.
In an Oct. 11 reply, Mosey and Van Kirk responded to the filing and denied its conclusions.
“[This material] states legal conclusions to which no responses are required. To the extent said allegations are directed towards these additional defendants and responses are deemed necessary, said allegations are denied. By way of further answer, these additional defendants herein refer to and incorporate their previously-filed answer, new matter and cross-claims pursuant to Pennsylvania Rule of Civil Procedure 1031.1 to defendant Blystone Tree and Landscaping, Inc.’s complaint to join additional defendants,” the reply stated.
UPDATE
Mosey and Van Kirk filed a further answer with new matter (which restated their prior filing in this same regard) and an accompanying cross-claim on Dec. 21.
“These additional defendants deny and continue to deny that they are liable to defendant, Blystone Tree and Landscaping, Inc., additional Defendant TruGreen, Inc., and plaintiffs, upon any theory,” the cross-claim stated.
“Should the plaintiffs be entitled to recover from these additional defendants, although it is denied that plaintiffs are so entitled, then these additional defendants are entitled to indemnification and/or contribution from defendant, Blystone Tree Service and Landscaping, Inc., and/or additional defendant, TruGreen, Inc. for purposes of asserting such rights of indemnification and/or contribution, these additional defendants herein refer to and incorporate the plaintiffs’ complaint in civil action, although by making such reference, these additional defendants make no admission as to the truth or falsity of any factual allegations contained therein.”
On Jan. 14, TruGreen replied to the answer, new matter and cross-claim from co-defendants Mosey and VanKirk.
“The averments contained…are conclusions of law to which no response is 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 defendants are represented by Mark A. Eck of Tucker Arensberg, Paul J. Walsh III and John M. Polena of Walsh Barnes & Zumpella and Danielle M. Vugrinovich of Marshall Dennehey Warner Coleman & Goggin, also all 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