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Holts v. City of Omaha8/6/2002
(not designated for permanent publication)
The district court for Douglas County awarded Vanessa K. Holts $410,815.54 for the loss of her 13-year-old son, Alois Merlin Holts. Alois was killed when a decayed tree located in an Omaha right-of-way fell on him as he played on the sidewalk near his home. The City of Omaha (City) appeals.
FACTUAL AND PROCEDURAL BACKGROUND
On April 25, 1996, Alois was riding a go-cart on the public sidewalk near his home in Omaha when a 60- to 85-year-old green ash tree (the green ash), standing in the Camden Avenue and 33d Street right-of-way, broke approximately 6 feet above the ground and fell on him. Alois suffered severe internal injuries and never regained consciousness after the accident. He died on May 1.
On April 22, 1997, Vanessa filed a tort claim with the City for Alois' injury and death. No action was taken, and Vanessa, as special administrator of Alois' estate, filed a wrongful death suit against the City in the district court for Douglas County. Vanessa sought recovery for the pecuniary losses occasioned by Alois' death and for the loss of Alois' care, comfort, and companionship.
The pretrial order stipulated that the City had control over the street right-of-way at 33d Street and Camden Avenue, where the green ash had stood. The disputed issues included (1) whether the City was negligent in its inspection and maintenance of the green ash; (2) whether the City had actual or constructive notice of the danger the green ash created, if any; (3) whether the City's negligence was a direct and proximate cause of Alois' death and Vanessa's damages; and (4) the extent of any pecuniary loss under Neb. Rev. Stat. ยง 30-810 (Reissue 1995) and the loss of Alois' companionship, society, and comfort.
At the trial, Vanessa presented evidence tending to show that the green ash which fell on Alois had been visibly distressed or weakened and had been previously marked for removal in accordance with the City's procedure for maintenance of trees located in its right-of-ways.
Paul Holts, Alois' uncle, testified that the green ash and three other trees standing next to it had been marked with yellow X's. The evidence was that it is standard city procedure to paint an "X" on "hazard trees" designated for removal. According to Paul, who lived on the street where Alois was killed, the X's had been there at least since March 1995. Paul testified, " hen you come around that corner, you couldn't help but see all of the X's on the trees." Paul recollected seeing the X's on the trees as late as 1997, but they were fading at that time. Upon cross-examination, when presented with pictures of the trees on 33d Street and Camden Avenue, Paul conceded that the trees did not appear to have X's on them. He claimed, however, that the paint had faded.
Vanessa also presented the deposition testimony of Ruth Williams Franklin, who had previously lived at 3356 Camden Avenue. Franklin testified that in the late 1980's, a 50-foot limb from the same green ash tree fell into her yard. According to Franklin, the leaves on that branch were brown and there was no high wind or storm on the day the branch fell. Franklin testified that she called the City immediately to have the limb removed from her yard. Franklin said that at that time, the City examined the green ash and decided not to remove it, a decision she did not agree with because the fallen limb was hollow and because the green ash also appeared hollow at the point where the limb had broken away. Franklin testified that she called the City three or four times to request the green ash's removal, but the City refused. According to Franklin, smaller limbs from t
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