For the lawyers out there

mchammer

mchammer

10,000+ Posts
MCHammer had to send this email to the (public) HS principal. I presume he will respond appropriately, but if not, what are my options other than pulling my daughter out of band practice?

Dear Sir,
Is there a plan to address this safety issue (please see e-mail below, which I edited for clarity)? I have not had a courtesy of a reply from the band director. I prefer my daughter not have to stand under a 100 ft dead pine tree one more day like she did today. I presume you take the safety of the students in your care seriously. If so, please act accordingly.

Subject: Dead tree on 43 yard line of practice lot

Dear Band Director,
There is a dead tree in the parking lot where the band practices. I have attached a photo. The bark is already falling off the tree in places. This is extremely dangerous. When the wind picks up this Fall, the tree will fall over, endangering our students, many of whom stand near this tree during break or while practicing their routine. I understand this land belongs to the Woodlands Church, which complicates matters, but to continue to conduct band practice underneath this tree is unwise and could be construed as willful misconduct and gross negligence by a court of law if anything were to happen. Please take care of this matter in the most urgent fashion. I had a co-worker who died when a dead tree in his backyard fell on him on a windy day. This is not a matter of if, but when. Please forward this email to the school principal. Thanks for the great work you are providing to the community. I do not wish to see it marred by a tragic accident that could be avoided.
 
I'm not a lawyer, but I did stay in a Holiday Inn Express one time and I did take Dr. Prentice's B-Law class. But really, I don't think it will come to having to take legal action. If the principle doesn't do anything the next step is the superintendent and school board. My dad served on a school board and I know if he had heard about something like this it would have been addressed immediately.

You might also speak with someone at the church. They don't want thier name dragged through the Houston media if there were an incident. It would only effect them negatively regardless of what the details of the incident were. Especially considering recent events with Harveycane and Joel Osteen, etc. And of course you could mention to the school administrators and the church, "you don't want me to have to go to the local media about the issue".
 
MC, I agree with RP. Go to the superintendent and the school board, and I'd bring photos of the tree. You want photos that show why you think the tree is dead and likely to fall as well as photos that show the tree in the context of where your daughter and other students would stand. And you should definitely inform the church.

Here's the bottom line. School districts have sovereign immunity against injury lawsuits unless they arise out of the use of a motor vehicle, and even then, liability is capped at $100,000 per claimant and $300,000 per occurrence under the Texas Tort Claims Act. Accordingly, if that tree fell and killed your daughter, your case against the school district would get tossed out of court by the trial judge. The school knows this, so it has no financial incentive to do anything. However, it does have political incentive to do do something, because it's embarrassing to a school when a kid gets hurt or killed because they failed to correct an obviously dangerous situation even after being warned about it.

However, if the tree is on the property of a church, you could sue the church. That's basically Greg Abbott's case. The hard part would be proving that the church knew or should have known that the tree was an unreasonably dangerous condition. (The law was much easier on that requirement when Abbott got injured.) If you contact the church and inform them of it, then they will have such knowledge. Accordingly, if someone later gets injured by that tree, they can be held responsible.
 
RP, Deez,

Thanks! Did not know that sovereign immunity protected against gross negligence from public employees. I got an appropriate reply from the band director who said it will be taken up with the church and the school administration. He said he was too busy during marching season to reply to email other than for an hour before school starts, and that a reply within 24 hours was not possible for that reason (I sent it yesterday morning from the church parking lot on my way in to work). While that sounds reasonable and recognizing that he puts in a lot of hours supporting the marching band, I replied that being too busy often results in safety issues being put on the back burner, and this was maybe the reason why the dead tree wasn't noticed in the first place. I said it was these concerns that motivated my emails.
 
I've decided to take a one-thread-per-week approach to HornFans, and the thread title caught my attention. This gets me off the hook easy this week, so thanks for that!

My main "lawyer hat" reaction to your post is that the responses before me are correct and you should proceed accordingly.

I'm also a member of a school board, and from that perspective my response is that you need to chill. What I see here is an issue that should be addressed in due course, but not an emergency. A few random observations.

(1) There was no reason to send this email to the band director. I don't know how your district is structured, but it should have been easy to figure out who is in charge of the buildings and grounds. That would have been the right place to start (or the principal). When sending an email to someone outside his or her area of responsibility, it is reasonable to expect a slower response.

(2) Sending an email to a teacher and expecting a reply within 24 hours is unreasonable. For some teachers, email is an integral part of their routine. For others, it is not. A polite follow-up would have been appropriate. But a snide follow-up to the teacher's superior complaining that you haven't received "the courtesy of a reply" is unfair to the teacher.

(3) Trees die all the time. Sure, it's possible that this particular tree will fall the next time the wind picks up. But the same is true of living trees. The only thing that makes a dead tree more likely to fall is when the trunk and/or roots rots, which usually takes years if not decades. The district's B&G department should have someone on staff who is qualified to assess whether the tree is at imminent risk of falling. In fact, they should be making that assessment of every tree on or near every property they own, at least once if not twice each year. If the tree is not deemed to be an imminent risk to fall, there is no reason to treat this "in the most urgent fashion". Instead, it should be removed the next time they have an arborist on site, which is probably once or twice a year.
​
You have done your service by reporting the dead tree. Now you should trust the district to do its part.
 
NJlonghorn said:
I've decided to take a one-thread-per-week approach to HornFans, and the thread title caught my attention. This gets me off the hook easy this week, so thanks for that!

My main "lawyer hat" reaction to your post is that the responses before me are correct and you should proceed accordingly.

I'm also a member of a school board, and from that perspective my response is that you need to chill. What I see here is an issue that should be addressed in due course, but not an emergency. A few random observations.

(1) There was no reason to send this email to the band director. I don't know how your district is structured, but it should have been easy to figure out who is in charge of the buildings and grounds. That would have been the right place to start (or the principal). When sending an email to someone outside his or her area of responsibility, it is reasonable to expect a slower response.

(2) Sending an email to a teacher and expecting a reply within 24 hours is unreasonable. For some teachers, email is an integral part of their routine. For others, it is not. A polite follow-up would have been appropriate. But a snide follow-up to the teacher's superior complaining that you haven't received "the courtesy of a reply" is unfair to the teacher.

(3) Trees die all the time. Sure, it's possible that this particular tree will fall the next time the wind picks up. But the same is true of living trees. The only thing that makes a dead tree more likely to fall is when the trunk and/or roots rots, which usually takes years if not decades. The district's B&G department should have someone on staff who is qualified to assess whether the tree is at imminent risk of falling. In fact, they should be making that assessment of every tree on or near every property they own, at least once if not twice each year. If the tree is not deemed to be an imminent risk to fall, there is no reason to treat this "in the most urgent fashion". Instead, it should be removed the next time they have an arborist on site, which is probably once or twice a year.
​
You have done your service by reporting the dead tree. Now you should trust the district to do its part.
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More people die from falling trees than lightning strikes. What would the reaction be if the band director marched the band in a lightning storm? In response to your numbered comments: 1) I sent it to the band director cause it is his direct responsibility to keep the students safe. Second, they march where he sends them, in this case under a dead tree. 2) Disagree. It is unfair to my child to place her under a dead tree without my approval. 3) Hey, let's have a fundraiser activity where we march the kids 4 days a week for 90 minutes under a dead tree and see which ones survive or die. That's a great idea. Dead trees (particularly ones that are losing its bark) need to be removed immediately. By all means, get an arborist - 99% chance he says to cut it down.
 
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NJlonghorn said:
I've decided to take a one-thread-per-week approach to HornFans, and the thread title caught my attention. This gets me off the hook easy this week, so thanks for that!

My main "lawyer hat" reaction to your post is that the responses before me are correct and you should proceed accordingly.

I'm also a member of a school board, and from that perspective my response is that you need to chill. What I see here is an issue that should be addressed in due course, but not an emergency. A few random observations.

(1) There was no reason to send this email to the band director. I don't know how your district is structured, but it should have been easy to figure out who is in charge of the buildings and grounds. That would have been the right place to start (or the principal). When sending an email to someone outside his or her area of responsibility, it is reasonable to expect a slower response.

(2) Sending an email to a teacher and expecting a reply within 24 hours is unreasonable. For some teachers, email is an integral part of their routine. For others, it is not. A polite follow-up would have been appropriate. But a snide follow-up to the teacher's superior complaining that you haven't received "the courtesy of a reply" is unfair to the teacher.

(3) Trees die all the time. Sure, it's possible that this particular tree will fall the next time the wind picks up. But the same is true of living trees. The only thing that makes a dead tree more likely to fall is when the trunk and/or roots rots, which usually takes years if not decades. The district's B&G department should have someone on staff who is qualified to assess whether the tree is at imminent risk of falling. In fact, they should be making that assessment of every tree on or near every property they own, at least once if not twice each year. If the tree is not deemed to be an imminent risk to fall, there is no reason to treat this "in the most urgent fashion". Instead, it should be removed the next time they have an arborist on site, which is probably once or twice a year.
​
You have done your service by reporting the dead tree. Now you should trust the district to do its part.
Click to expand...
Your response was exactly what I feared from the school: do nothing and let's hope for the best. I did see online that a number of cities have ordinances that require a dead tree be removed immediately if in path of public spaces such as sidewalks. I don't see why I would accept a lesser standard when my daughter's safety is at risk. Further, what is there to gain by waiting? The risk goes up and it ain't going to get cheaper to remove the tree.
 
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A dead tree is a risk. Its roots and trunk are at an elevated risk of rotting, leading to an inevitable fall. When trees fall, they occasionally hit people, often killing them. I think we can all agree that schools should try to avoid that.

mchammer said:
Your response was exactly what I feared from the school: do nothing and let's hope for the best.
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I didn't say that. What I said was that the issue needs to be addressed, but that you are overdramatizing it. Someone who knows what they are talking about can tell whether a tree is at imminent risk of falling. If it is, the school should cancel or move band practice until the tree is removed. There's no reason to take stupid risks.

But if the tree shows no signs of imminent danger, it should be put on a list to be removed in due course.

mchammer said:
The risk goes up and it ain't going to get cheaper to remove the tree.
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Wrong. The district undoubtedly has a tree-removal company on site one or more times each year, removing multiple trees each time. Having them take a special trip out is expensive. Plus, they do it on breaks to avoid disrupting school activities.

mchammer said:
By all means, get an arborist - 99% chance he says to cut it down.
Click to expand...

Of course an arborist would say to cut it down. I'm saying that, too. The question is how much urgency an arborist would attach to the situation. I'm not qualified to make that assessment, and neither are you. But the district should have the ability to make that call.

My overriding point is that there was no need for a snide, borderline nasty email.
 
NJlonghorn said:
A dead tree is a risk. Its roots and trunk are at an elevated risk of rotting, leading to an inevitable fall. When trees fall, they occasionally hit people, often killing them. I think we can all agree that schools should try to avoid that.



I didn't say that. What I said was that the issue needs to be addressed, but that you are overdramatizing it. Someone who knows what they are talking about can tell whether a tree is at imminent risk of falling. If it is, the school should cancel or move band practice until the tree is removed. There's no reason to take stupid risks.

But if the tree shows no signs of imminent danger, it should be put on a list to be removed in due course.



Wrong. The district undoubtedly has a tree-removal company on site one or more times each year, removing multiple trees each time. Having them take a special trip out is expensive. Plus, they do it on breaks to avoid disrupting school activities.



Of course an arborist would say to cut it down. I'm saying that, too. The question is how much urgency an arborist would attach to the situation. I'm not qualified to make that assessment, and neither are you. But the district should have the ability to make that call.

My overriding point is that there was no need for a snide, borderline nasty email.
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I appreciate you taking the time to comment. You missed the point that the tree is on church property that the school uses for band practice, though that doesn't change much of what you are saying but the tree removal part is out of their control. Second, that tree has likely been dead (by the looks of it) since they started practice in late July. The school has been negligent in my mind since then. Frankly I am skeptical that the band director has never noticed the dead tree. It is located directly across the field from where he stands when directing the band. Finally, what is an appropriate time to wait to have the tree removed, or if the church never removes the tree, to move the practice location?
 
A parent just told me that a kid was hit (or almost hit - will confirm) by a car in the drop off line. I really don't think the school cares about safety.
 
Student hit by car confirmed (this email was sent out a few weeks ago - see below). Real safety leadership - sending out an email while doing nothing to change the situation. The parent I talked to said he called the principal a few days ago cause it almost happened again. See a pattern? Typical of an organization with a lack of safety culture.

Parents:

We have an issue that I need your help to resolve so that students are safe everyday.

This morning we had a student hit by a car. One student is to many. I need your help in resolving this so you are not receiving a call notifying you that it is your child that was hit by a car.

We have a large number of parents dropping students off at Shipley's or Chick-fil-A and then leaving them to walk across the street in heavy traffic to get to campus. Also, we have a good number that arrive on campus and leave to go to one of the restaurants. Both situations are very dangerous and not allowed by our campus. All students should be dropped off at school. Please go through the drive-thru at one of the restaurants and then bring them to school. If you drop them off and they are leaving campus, please remind them that they are not do to this. We will be working on dealing with students that are leaving campus before school as they are not suppose to leave.

Please know that this is very dangerous as visibility is very limited in the mornings. Please keep your child safe by making sure they are dropped off at the front of the school.

Thank you for your help.
 
MC,

In the matter of the tree, I recommend you call Kerry Shook direct. Doubtful you will get to him, but explain to his assistant about the tree, and someone will sit down with you. I am confident the church will have the tree removed quickly.

FWIW, I've known both Kerry and Mark, as well as their father Damon, for many years. They are very easy people to visit with and to deal with.

The educrats in the Conroe ISD, not so much. You are asking them to actually do something constructive other than cash their paycheck.
 
MC, this scenario would never rise to the level of gross negligence. If Governor Abbott hadn't been injured by a dead tree and scored a massive settlement out of it (and then spent the rest of his career making sure other people with far less questionable claims couldn't do something similar), the Texas Supreme Court probably wouldn't even allow you to bring the case as a matter of basic negligence because it's a naturally occurring phenomenon. They've tossed other cases on that basis.
 
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SabreHorn said:
MC,

In the matter of the tree, I recommend you call Kerry Shook direct. Doubtful you will get to him, but explain to his assistant about the tree, and someone will sit down with you. I am confident the church will have the tree removed quickly.

FWIW, I've known both Kerry and Mark, as well as their father Damon, for many years. They are very easy people to visit with and to deal with.

The educrats in the Conroe ISD, not so much. You are asking them to actually do something constructive other than cash their paycheck.
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Yes, I took everyone's advice and called the church yesterday and left a message with the events and facilities person. Unfortunately I was in meetings all day so I didn't call till mid afternoon. Will follow up today. The school might have contacted them as well on Wednesday but they haven't communicated anything to me except acknowledging my letter. They are still practicing under a dead tree. Yes I learned the school admin is worthless and that I should have contacted the church first. Would have saved a lot of heartburn. My 4 children have either been in private school or homeschooled from K-8 (generally homeschooled from K-4 and private school from 5-8). My 9th grade daughter is my first experience with public school system since I graduated public HS in 1987 (30 years). I really don't care what they teach as I can counteract that, but doing known unsafe stuff is problematic for me.
 
Mr. Deez said:
MC, this scenario would never rise to the level of gross negligence. If Governor Abbott hadn't been injured by a dead tree and scored a massive settlement out of it (and then spent the rest of his career making sure other people with far less questionable claims couldn't do something similar), the Texas Supreme Court probably wouldn't even allow you to bring the case as a matter of basic negligence because it's a naturally occurring phenomenon. They've tossed other cases on that basis.
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Yes, I am operating on that basis. Thanks for educating me.
 
mchammer said:
Apropos:

https://www.google.com/amp/amp.usatoday.com/story/440102001/
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I don't blame him. There are two ways of losing if you're a plaintiff. One way is that the jury hears your side of the story and your opponent's side, looks at and weighs the evidence, and decides that it doesn't weigh in your favor. I've lost cases this way, and though the clients were never happy to lose, they didn't feel like they were cheated because they got their day in court. It's a loss, but it's not an injustice.

The other way you lose is when the judiciary decides that you don't even get your day in court. Nobody hears your side of the story. The other side never has to answer for anything. You lose because the court says so. People who lose this way are bitter about it because they never even got the opportunity to try. They know they suffered an injustice. That's what happened to Leach.

And frankly, I'm not sure why a conservative state would be a fan of sovereign immunity. It's about the most elitist and pro-government doctrine I can imagine. The government gets to pass laws on its citizens and its businesses, and if either breaks those laws and hurts somebody, they have to answer to that somebody in court and pay damages. However, the government can violate those same laws, hurt people, and tell them to screw off.

Furthermore, sovereign immunity is a holdover from the British common law doctrine of crown immunity - the idea that the king can do no wrong. Well, we dumped the king and replaced it with a government that's supposed to answer to its citizens, so why vest in that government the same kind of immunity that protected the king?
 
Was told by neighbors to contact the Township due to inaction by the church. Fortunately, one of the Township directors works in my building. By the way, I have been exceedingly nice with the person from the church.

Hi John,

This is MC Hammer from the 7th floor. I have a Township question regarding a dead tree that is a hazard for our school kids in the Township. Here's the situation: my daughter, who participates in the College Park HS band, practices behind the school on the property of The Woodlands Church on a paved parking lot surrounded by trees, one of which is a large dead pine tree (please see photo below). It is located on what would be the 43 yard line of a football field. The tree has been dead since at least late July (when I first noticed it). At the risk of being overly dramatic, if it happened to fall during practice, it would cause serious injury or death. I notified the College Park HS principal and band director about the dead tree in September. I got a note back from the band director acknowledging the issue, but nothing was done. After talking to others, I was told that I should contact the church since it is their property. As such, I have been in contact with the person in charge of church facilities since Oct 3. Based on our phone conversations, it appears the matter has been forwarded to their accounting team, which I took initially as a good sign. However, one month later, nothing appears to have been done. I have called the church twice since the initial phone call on Oct 3, but I get the same answer, namely "we're still checking on things". I'm afraid removing the dead tree is a low priority for the church. After talking with others, I have been told that I should contact the Township - thus the reason for this letter. One more thing, I had a tree removal service come out to the parking lot on Oct 2 to provide a quote for removing the tree so that I could present it to the church (please see attached). In fairness, the person from the tree removal service didn't think the tree was in immediate danger of falling. But, given the lack of effort I've seen from all involved, I'm afraid the dead tree will still be there next July when the band starts practicing again. In short, is there anything the Township can do to speed up the process? Otherwise, it appears the kids' safety is at the mercy of others who don't seem to share the same concern as I. If you need more details, I am in the office tomorrow (Friday). Thanks.
 
NJlonghorn said:
Put this on your calendar for April. If the tree is still there, make a renewed push. Until then, sleep easy.
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Do you think this is how MC Hammer rolls? I got news for you.

Okay. Just talked with the Township Director. He forwarded my email to the chairman of the Design Review and Develoment Standards committee. If you are not familiar with the Woodlands, you can’t do anything to your property (residential or commercial) without their approval. It is most the powerful force in the Woodlands by far. They have a right to fine you out of existence if you violate covenants. And, they take their power seriously. I have been on the receiving end of one of their letters (which I meekly complied). Anyway, the director just told me that the committee just confirmed that this is a covenants issue and that the Township will officially respond to the church. Basically, as I read it, the church has no recourse now but to remove the tree, otherwise the Township would be setting a bad precedent that many other residents would love to use against the Township and/or Review and Standards committee. You might be aware that The Woodlands has been called a benevolent dictatorship - this is why. WHY DIDN'T I THINK OF THIS EARLIER!!!

:hammertime:
 
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Mr. Deez said:
Yep, dictatorship is great when it's working for you.
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No kidding. I wrote an email on late Thursday afternoon and by Friday mid-morning I have the weight of the Township about to bust the balls of the church. Hey, just asking for equal treatment under the law.

Next question. When the tree is removed, should I inform the high school admin as a FYI that I went to the Township to get the tree removed and explain it was done via covenant enforcement? I think this is something they could learn from.
 
mchammer said:
Next question. When the tree is removed, should I inform the high school admin as a FYI that I went to the Township to get the tree removed and explain it was done via covenant enforcement?
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Well, that sorta depends on how much your want to show off. Lol.
 
Tree gone. The Township Director thinks the Township removed it themselves as they have moved similarly fast in other cases. Long story short: finally talked with someone that saw the potential PR disaster of a tree needlessly killing HS kids. The Township is really sensitive to the public image of the Woodlands. It serves the function of a governing body as well as the chamber of commerce.
 
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I had to call the church this morning to find out who removed the tree. What if the church saw the tree was gone and assumed I did it on my own? The facilities manager at the church said he was told the tree removal was scheduled for Friday right after our call on Thursday afternoon. The story sounded believable, plus I don’t believe the Township can move that fast. Since I had offered to pay for removing the tree myself, I told the church I would make a donation of a similar amount to their upcoming church mission. I feel sheepish now for calling the township, but I talked with a co-worker who is a church member last Friday. He says there was no excuse for it to take 5 weeks from first notification given the resources they have. Anyway I sent a note on Friday to the director saying the tree is now down.
 
VYFan said:
If the church owns it, they will cut it for you if you ask nicely. 99% sure.
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You were correct! Took a while, but they did it. For causing a fuss, I am happily making a donation to the church for a similar amount of removing the tree. Going towards one of their mission trips.
 
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