Latest News 2013 May Settlement: Cash Poor City Originally Rejected Claim in Regards to Fallen Oak Tree That Killed Toddler

Settlement: Cash Poor City Originally Rejected Claim in Regards to Fallen Oak Tree That Killed Toddler

A settlement is in the works in regards to a 2 year-old boy that was killed when a rotted oak tree crashed down onto his family's truck in 2010, as reported by the Mercury News, as the city of San Jose now wants to resolve the issue.

City officials are suggesting that a settlement of $325,000 be paid to the family on behalf of their deceased son M.O.

Public outcry – after the city said it was up to the residents to pay for the upkeep of city-owned trees in front of their homes – is what allegedly propelled the settlement.

E.G. and J.O. had parked in front of a relative's home on South Seventh Street during a rainy night on January 22, 2010. M.O. was in the car with his parents as they waited for his 13 year-old brother to join them.

Without warning a 10-ton silver maple tree came crashing down on their GMC Sierra truck. Both adults and M.O. were trapped inside of the vehicle. The top of the cab pinned the three in the front seat; M.O. was strapped in his car seat between his two parents.

E.G. was freed in about 40 minutes, while it took about an hour to extricate J.O. and M.O.

E.G. suffered with a broken arm and J.O. sustained an injury to his neck. M.O. died at the Santa Clara Medical Center.

In April of 2011 the city was sued for wrongful death, personal injury and property damages. A 2010 claim against the city had been previously rejected.

The 2011 suit argued that the city owned the silver maple, the tree had sustained root decay and therefore presented a dangerous condition. The suit also contended that it was the city's responsibility to be aware of the tree's overall condition and should have done what was necessary to repair it.

City Attorney Rick Doyle wrote, "While we believe there is insufficient evidence to support the plaintiffs' allegations that the city owned or controlled the tree that fell, and insufficient evidence that the city knew or should have known that a dangerous condition existed, those would be factual questions for the jury to decide. There are always risks in proceeding to trial, and this settlement avoids those risks."

According to Doyle the family agreed to the settlement. Doyle added, "It's a terrible tragedy, and our hearts go out to the family."

The city is planning on planting 100,000 new trees in the next ten years. However, beginning in 2008 the city stopped funding the maintenance of it's street trees that were located in public rights of way. The responsibility for the maintenance, according to the city, was now up to the homeowners.

City Arborist R.M. confirmed that the tree that killed M.O. had root decay that was not noticeable from the ground. During the last city's last inspection of the tree, in 2005, no rot was detected.

A sudden death of a loved one is tragic. If your loss has been coupled with the knowledge that the death was preventable, contact a personal injury lawyer to file a lawsuit!