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SUNNY Temp: 68 °F Wind: CLM at 0 mph Monday, July 28, 2003 SECTIONS Home Page Local News Sports Business Obituaries Life Opinion - Politics AP News Weather Classified Archives Site Map EXTRA HomeLife Magazine W3 Magazine Jobs @ Mail Tribune Tempo A & E Oregon CarZone Wellness Connection Real Estate Newspaper in Education Prime Times Outdoor Journal Personals Movie Times TV Times E The People CLASSIFIEDS Find a Car Find a Home Find a Job Find Everything E SOUTHERN OREGON Automotive Communities Entertainment Publications Recreation Calendar ABOUT US FAQ What's New Advertise Home Delivery Classified Ad Contact Us Media Kit Email Story to a Friend April 27, 2003 Woman sues state after tree falls on studio Barclay warned ODOT years ago; now that the tree has toppled, the state argues she should have taken precautions By TONY BOOM Mail Tribune ASHLAND — Prospective buyers might want to think twice before buying a property where a neighbor’s tree could fall on their home, if a state attorney’s arguments are affirmed. Sean T. Brady, representing the Oregon Department of Transportation, wrote that Ashland resident Zoe Barclay voluntarily assumed the risks associated with falling trees by moving to or purchasing property in an area where they come down. The statement was in response to her claim for damages. A cottonwood tree in ODOT’s right of way next to Interstate 5 destroyed a studio on Barclay’s adjoining property Nov. 27, 2001, when it fell during a windstorm —and after Barclay had warned ODOT that the tree needed to be removed. Barclay has been unsuccessful in getting the agency to pay damages. In January her attorney, Doug Gard, filed a claim in Jackson County Circuit Court against the agency, seeking $92,984. Brady’s answer, filed March 31, denies the claim. The issue will probably go to trial. Gard rejects the state’s argument. Advertisement "The health of the tree is the question, not where the building was when it’s legal to build there," said Gard. "If we were going to avoid trees wherever we go it would be ridiculous." Barclay had notified ODOT officials of the tree’s weakened condition for three years prior to its fall. Besides destroying the studio, it cut water and power to her nearby house. A Department of Justice spokesman said the location assertion is just one piece of information. "Whenever we are answering a claim in a case, it’s the state’s obligation to make sure that we make the court aware of every possible contingency." said Kevin Neely. The state also said Barclay failed to take steps to move the building out of the danger area and failed to remove its contents. The state raises six defenses, including that the tree’s fall was an act of God. If wind caused the tree to topple, it would be an act of God, said Gard, but not if it was due to the tree’s condition. "The state gets sued all the time," said Neely. "It’s in the state’s best interest to present as compelling an argument as we can to save ... money." "The question is: Were they negligent?" said Gard. "They didn’t take the steps that a reasonable landowner would take with the knowledge they had." ODOT officials examined the tree in October 2001 and planned to take it down in December that year. Tree firms prepared two reports for Gard that said the tree showed obvious signs of ill health and that the trunk was rotten. It will cost about $50,000 to rebuild the studio. Barclay’s insurance paid $8,500 for damages to a pump house, but the insurer anticipates reimbursement from ODOT. The case could be settled without a trial, but so far the state hasn’t made an offer. The case has been assigned to Judge Mark Schiveley, but no trial date has been set. Gard estimated the case might come to trial in eight or nine months. Reach Ashland bureau reporter Tony Boom at 482-4651, or e-mail [email protected] Printer Friendly Version Email Story to a Friend Subscribe Archive: Click to Search Mail Tribune Home Local News | Sports | Business | Obituaries | Life Opinion - Politics | AP News | Archives | Site Map E Southern Oregon | Classified Copyright © 1997-2003 Mail Tribune. All rights reserved. Privacy Policy | Terms & Conditions Website Feedback A D V E R T I S E R S SPECIAL SECTIONS Rogue Valley Auto Finder Rogue Valley Job Finder --> Rogue Valley Home Finder Joy Magazine Homelife Magazine Tempo Real Estate Showcase Food for Thought Hike of the Week Wellness Connection Outdoor Journal Moving to Southern Oregon? Volunteer Openings Prime Times