Sometimes even a known hazard can be so dangerous that injuries are inevitable. A Miami-Dade condo complex had removed a tree from an isthmus jutting out into the parking lot near our client’s unit, but they left a stump and the network of roots that protruded up as high as 8 inches in spots.
There is a concept in landscaping and in the Law called a Desire Path (aka social trail or desire line). For an example, look on any college campus and you will see paths worn into the grass in the shortest or most easily navigated routes between certain buildings, even though there are sidewalks or other constructed ways – those constructed ways are more circuitous or have gaps. Humans are more direct, by nature.
Thus was the situation for our client to make her way from her unit around the corner of her building to the opposite far corner of her building to get her mail every evening when she got home. There was a sidewalk that she could have gotten to, had she taken the more circuitous route and walked between parked cars in a darkened part of the lot on this particular December evening, but she followed the desire path that led her to walk along the edge of the dangerous root network that lurked in some overgrown grass in the parking lot isthmus. Even though she knew about the roots and tried to stay to the edge to avoid them, she tripped and shattered her elbow.
The elbow required four open surgical procedures to treat. When the first three failed, her treating surgeon replaced her elbow entirely with an artificial one. She hired Dennis Phillips, Esq. to represent her.
Mr. Phillips hired a horticultural expert to examine the scene, and the expert found that the underlying cause of the roots of this particular type of tree to be sticking up so prominently from the ground was that the fill was packed too tightly when the complex was originally constructed. Under the circumstances, that particular type of tree was totally wrong for the terrain. He also documented how the roots had under-grown the edges of the parking lot on either side of the isthmus, and that there was evidence of multiple attempts to patch the cracks in the parking lot.
This was clear evidence that the condo complex had actual knowledge of the condition of those roots, not to mention that it was the condo association who ordered the removal of the tree but not the roots or stump in the first place. Before the tree was removed, the branches obstructed the path so that nobody could walk through there, even if they wanted to. Thus, the association actually created the dangerous desire path by cutting down the tree but leaving the stump and root complex. The case eventually settled at mediation for $232,000.