Family members of a 61-year-old woman fatally hit by a falling 80-foot tree at her daughter’s 2016 wedding party in Whittier can take their lawsuit against the city to trial, a second judge has ruled.
Norwalk Superior Court Judge Margaret Miller Bernal issued her ruling Wednesday. Judge Kristin S. Escalante handed down a similar ruling May 17, but the city submitted a second dismissal motion June 14, stating in its court papers that they contained facts that “arise from new circumstances and new evidence that the city was not previously able to raise regarding the location of the subject tree in an unimproved area of Penn Park.”
Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, the city argued in its court papers.
But lawyers for the relatives of the late Margarita Mojarro maintained in their court papers that the area in which the tree was located was “clearly improved, developed and actively maintained” by the city and its tree-care company.
“This isn’t even a close call,” the plaintiffs’ attorneys stated in their court papers.
Trial is scheduled April 8, 2020.
The lawsuit was filed in Los Angeles Superior Court in April 2017, alleging wrongful death and that a dangerous condition of public property existed. The case was later transferred to Norwalk Superior Court.
The plaintiffs include the woman’s husband, Feliciano Mojarro, and four of her children — including the bride, Patricia Mojarro.
The tree toppled over at William Penn Park in the 13900 block of Penn Street about 4:30 p.m. Dec. 17, 2016, according to the Los Angeles County Fire Department. The tree was over-watered and allowed to grow on an unsafe 20% grade, according to the complaint.
Matteo Garbelotto, who holds a doctorate in forest pathology and microbiology, examined the remains of the tree and submitted a declaration on behalf of the plaintiffs’ opposition to the dismissal of the case when the city’s first motion was heard.
“The decaying branch stub where decay started would have been visible 10-plus years prior to the accident,” said Garbelotto.
He further said that because the tree was located on a steep bank and was allegedly excessively watered, it should have been “identified as a tree requiring to be inspected closely and often at a level beyond the simple visual inspection.”
Root damage to the tree was extensive and could have been detected by probing the surfacing roots for at least five years before the fall, according to Garbelotto.
Mojarro, of San Pedro, died at a hospital. A 3-year-old niece of the bride was hospitalized in critical condition with a traumatic brain injury and a half-dozen other people were treated at a hospital for injuries non-life-threatening injuries.
The tree was a Blue Gum eucalyptus that had become “acutely diseased,” according to the suit. “Before plaintiffs knew what was happening, the massive, multi-thousand-pound tree was upon them and they could not escape its path of destruction.”
In their first court papers seeking dismissal, lawyers for the city stated that the accident was “only a tragic stroke of nature” and that “there is no basis for concluding that Whittier is at fault or liable to plaintiffs under California law.”
Arborists hired by the city trimmed the tree in 2014 “and reported nothing to Whittier about any problems with the tree,” according to the defense’s court papers. In addition, Whittier’s park manager inspected the tree two months before the accident “and saw no indications of disease, decay or any other reason for concern,” according to the defense’s court papers.
Before it fell that day, the city never received any complaints, reports or problems about the tree, according to the defense’s court papers.
The plaintiffs’ attorneys maintained, however, the city knew of the dangerous condition of the tree and had the means and authority to protect park visitors against such a tragedy.
The park is a popular photo-taking spot because of its mature trees. The wedding party was posing for pictures when the tree fell.
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