When a tree falls in a city park, who pays for damage?

FORT ATKINSON, Wis. - A man thinks the city of Fort Atkinson should pay for repairs to his car after a tree fell in a city park. As Contact 6 discovered, Wisconsin law may not be on the man’s side.

"I heard the crackle," recalled Luke Tabbert. "All of a sudden, "boom!" The whole thing came down on me."

While driving through Rock River Park in Fort Atkinson on April 27, Tabbert approached a tree when its top half split off and fell.

"Smashed my windshield. Came down through my whole radiator system. Got my suspension all messed up," said Tabbert.

Tabbert visited the ER for whiplash and was released. His car hasn’t recovered as quickly. His windshield is still shattered in one corner.

"This is $500 just to replace (the windshield)," said Tabbert. "I don’t have that right now."

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When the tree snapped and fell onto Tabbert’s car, he was left with a big question: whose insurance would pay for the damage? His or the city’s?

The answer was neither.

Tabbert says he has liability insurance which only covers damage when he’s at fault. He called his insurance company.

"They said I was supposed to file a claim against the city," recalled Tabbert.

Tabbert did file a claim for the damages. He got a letter written on behalf of the city’s insurance company.

The letter says, "We have investigated and found no negligence or liability on behalf the City of Fort Atkinson. The City did not have prior actual or constructive notice that the tree in question would fail."

Tabbert says he disagrees with the decision.

"I don’t think it’s right. I think the city should cover what happens in their city park," said Tabbert.

Fort Atkinson’s city manager, Rebecca Houseman, said the city did remove about 60 trees from the park last year after a July storm. She says the tree that fell onto Tabbert’s car wasn’t marked for removal.

"It wasn’t something we had identified as a dangerous situation," said Houseman. "It’s not as easy to identify as some of the other trees in our park that are clearly dead or dying."

Tabbert says the tree that struck his car was clearly dead. He pointed out other dead trees nearby to Contact 6.

"That one behind it is dead. This one right here is dead, right on the edge of the street," said Tabbert.

Houseman says when it comes to liability, it’s important to understand that the city has recreational immunity.

State statute says that recreational immunity is the "limitation of property owners’ liability" during activities on federal, state and municipal land, "whether for exercise, relaxation or pleasure."

Insurance attorney Justin Wallace of Wallace Law says the statute protects property owners, including cities, in exchange for letting strangers use their land.

"They have no duty under the recreational immunity statute to inspect the premises. Nor do they have the duty to warn people of potentially dangerous hazards," said Wallace. "It’s supposed to be liberally construed."

Wallace says there are exceptions for active negligence, or acts that are willful or malicious.

Houseman says that means the city doesn't have to assume liability for every tree or playground.

"There are any number of things owned by the city that someone could get potentially hurt or injured on," said Houseman. "The city can't be liable for all that and that's why the state legislature has given us recreational immunity."

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Jerry Deschane, executive director of The League of Wisconsin Municipalities, tells Contact 6 that while natural places are an important part of our communities, they may also contain hazards.

"Without a recreational immunity law, it would be more costly to provide these natural spaces for citizens to enjoy," said Deschane.

The Fort Atkinson City Council voted to disallow Tabbert’s claim. Its vote gives Tabbert six months to file a lawsuit against the city.

Tabbert is left wondering whether it’s worth repairing his car.

"The way it’s running, it’s got me scared that I’m gonna lose it in the next month or so," said Tabbert.

Tabbert says he can’t find a lawyer who wants his case, especially when the law usually favors a city.

Full statement from Jerry Deschane, executive director of the League of Wisconsin Municipalities 

"Wisconsin’s recreational immunity statute represents a balance of public interests and is critical to providing citizens with access to the outdoors. The statute acknowledges that, while Wisconsin’s natural places are a wonderful and essential part of our communities, they may also contain natural hazards and dangers. Without a recreational immunity law it would be more costly to provide these natural spaces for citizens to enjoy. "

Section of letter from Statewide Services, Inc., which administers claims for the League of Mutual Insurance 

"We have investigated this incident and found no negligence or liability on behalf of the City of Fort Atkinson. The City did not have prior actual or constructive notice that the tree in question would fail. A municipality has no liability unless it knew, or should have known, of the existence of a condition and had a reasonable amount of time to correct the condition. We assert that the tree failure was caused by a weather event which the city could not have prevented. Therefore, in the absence of negligence on the part of the City of Fort Atkinson, Statewide Services is advising the City to disallow your claim."