November 30, 2012
Plaintiff: Dead tree that fell and killed wife was a known hazard
Case Type: Dangerous Condition, Premises Liability – Tree, Wrongful Death – Survival Damages
Case Name: Douglas A. Scott, Individually and as Personal Representative of the Estate of Jeannie L. Scott, deceased v. Wyman B. Atkins, No. 2010 13679 CIDL / 2011 11200 CIDL
Venue: Volusia County Circuit Court, 7th, FL
Judge: Terrence R. Perkins
Harlan Lee Paul; Paul & Elkind, PA; Deland, FL, for Douglas A. Scott, Estate of Jeannie L. Scott
William Kuhn; Neurosurgery; Daytona Beach, FL called by: Harlan Paul
Frederick Raffa Ph.D; Economics; North Palm Beach, FL called by: Harlan Paul
Paul Deutsch Ph.D., C.R.C., C.C.M.; Life Care Planning; Orlando, FL called by: Harlan Paul
Geoffrey Kanter M.D.; Neuropsychiatry; Sarasota, FL called by: Harlan Paul
Charles Lippi; Trees; St. Augustine, FL called by: Harlan Paul
Charles Chobee Ebbets; Ebbets & Traster; Daytona Beach, FL, for Wyman B. Atkins
Lester A. Lewis; Lewis & Leiser, PA; Daytona Beach, FL, for Wyman B. Atkins
Auto-Owners (primary $1 million) and Allstate (excess $900,00) for Wyman B. Atkins
On Aug. 22, 2010, plaintiff Douglas A. Scott, 51, a tile installer, was driving with his wife, Jeannie L. Scott, 53, an office assistant, on Old Daytona Road in DeLand when a tree fell onto the vehicle. Scott’s wife was killed instantly. Scott claimed that he injured his head, neck and back.
Scott sued individually and on behalf of his deceased wife Wyman Atkins, who owned the property on which the tree was located, alleging wrongful death and negligence. Scott claimed that the tree had been dead long enough that Atkins knew or should have known that it was likely to fall and cause injury to others lawfully using the adjacent roadway. The plaintiff’s expert arborist opined that the pine tree had been dead for several years based upon the type of insects and depth to which they invaded the tree’s heart. Scott’s counsel further claimed that satellite imagery from Google Earth established that the tree had been totally defoliated for several years.
Defense counsel claimed that the tree was in the county right-of-way and therefore the responsibility of the municipality and not of the property owner. They further claimed that it was a rural area and the “Agrarian Rule” did not provide liability of a property owner for a dead tree falling from acreage it owned into a roadway.
Jeannie Scott died instantly from head wounds. Douglas Scott was taken to Halifax Medical Center where he was diagnosed with a concussion; degloving to his head; cervical spinal fractures at C1, C2 and C7; and fractures at T5 and T8. He underwent surgery the same day of the accident; doctors installed a halo brace to stabilize his spine. He remained hospitalized until Sept 3, 2010. He wore the halo brace until Nov. 24, 2010.
Scott claimed that he was unable to return to his job due to his injuries. He claimed that he continues to undergo physical therapy. He also had plastic surgery for the degloving injury to his head.
Scott sought to recover damages for wrongful death of his wife; his wife’s past and future lost earnings; his past and future pain and suffering; and his past and future medical expenses.
Defense counsel did not dispute damages.
The case was settled prior to trial when the defendant’s insurance carriers agreed to pay Atkins’ policy limits of $1.9 million. Atkins’ Auto-Owners’ primary insurance policy limit was $1 million. His excess Allstate policy limit was $900,000.
This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.
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