$2,200,000 – Falling Tree Accident Case

A $2.2 million settlement has been reached in a lawsuit involving a man who said he was seriously injured when a dead tree fell on his car while he was driving on a Bucks County road.

After two days of mediation with Judge Edward G. Biester Jr. of Judicial Arbitration and Mediation Services Inc. (JAMS), the parties agreed on a settlement of $2.21 million.

In Vasserman v. Dept. of Transportation, Ilya Vasserman was driving on Almshouse Road in Warwick Township on Aug. 19, 2002, when a dead tree fell over and landed on his car, crushing the roof and causing severe injuries to his brain and left arm, the plaintiffs’ mediation memorandum claimed.

The plaintiffs’ memorandum said Vasserman suffered a number of traumatic brain injuries, as well as a severe injury to his left hand that resulted in several surgeries and the amputation of two fingers. He remained in a coma until Oct. 3, 2002.

The plaintiffs’ memorandum also said that since waking from his coma Vasserman has had difficulty forming rational thought patterns and has been emotionally erratic, rendering him unable to return to work. The document also claimed he has been suicidal and has become dangerously overweight.

Vasserman and his wife sued the Pennsylvania Department of Transportation, which is responsible for maintaining trees along state roads, Czop Specter Inc., a consultant company under contract to PennDOT to inspect trees, and Zober Properties, the owner of the property the dead tree was on.

The plaintiffs’ mediation memorandum alleged that the accident occurred on a clear, calm night and that weather conditions did not play an immediate role in the falling of the tree. Rather, the memorandum alleged, it was the result of the property owners’ and inspectors’ neglect of a dead tree for years.

According to the plaintiffs’ attorney, David L. Kwass of Saltz Mongeluzzi & Bendesky in Philadelphia, PennDOT’s defense was that the tree was not its responsibility because it was not in its right of way.

Defendant Czop Specter, in its mediation memorandum, said that, as an independent contractor employed by PennDOT, its obligations only extended as far as PennDOT’s.

Kwass said both PennDOT’s and Czop Specter’s cases were significantly weakened when it was found that within six weeks of the accident a tree had been removed from a nearby area that was out of PennDOT’s right of way.

“We had a precedent,” Kwass said. “They were going to have a harder time arguing their case.”

Defendant Zober Properties said in its own mediation memorandum that PennDOT and Czop Specter regularly inspected the trees in that area and never found the tree in question to be hazardous.

Zober argued that because PennDOT and Czop Specter were already inspecting the trees regularly, there was no reason for any additional inspections by the property owner. Zober also claimed the decay inside the tree that fell was not visible from the outside.

In addition, Zober’s memorandum accused Vasserman of “exaggerating both his cognitive and physical condition in an effort to maximize his recovery.”

But Kwass said his clients had a more solid case against Zober than they did against PennDOT and Czop Specter because Vasserman had catastrophic injuries, the tree was on Zober’s property and Zober couldn’t dispute that it was dead and that there was no comparative negligence.

Kwass wondered whether jurors, if property owners, would have imagined themselves in Zober’s position and been more sympathetic to the company.

“Or, would they have said that if you don’t hold property owners responsible, from now until eternity when you drive Almshouse Road, you’re taking your life into your hands?” he said.

The parties reached a settlement before those questions could be answered, with the plaintiffs receiving a little bit less than half of the $4.5 million they had originally demanded based on Zober’s maximum insurance cap of $3 million, Czop Specter’s $1 million cap and PennDOT’s $250,000-per-plaintiff cap.

In the end, Zober paid $2,050,000, Czop Specter paid $150,000, and PennDOT paid $10,000.

Kwass said he and his clients were satisfied with the settlement even though they didn’t get the full amount they were seeking.

“I think there is always a sense that a good settlement is one where everyone is equally unhappy,” he said. “Do I look back on it and say this was a fair settlement? Absolutely.”

Deputy Attorney General Allan E. Ells, who represented PennDOT, could not be reached at press time and both Czop Specter’s attorney, Dennis P. Herbert of Powell Trachtman Logan Carrle & Lombardo in King of Prussia, Pa., and Zober’s attorney, Richard S. Margulies of Christie Pabarue Mortensen & Young in Philadelphia, declined to comment.

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