Decision to trim trees discretionary not ministerial and thus entitled to immunity.

In Nelesen vs. the City of Appleton (unpublished), a tree fell over in a wind storm and damaged Nelesen’s property. Nelesen essentially argued that since a tree on City property had had branches fall onto and damage his property in the past, the City knew the tree would cause property damage in the future and (apparently) the City should have removed it rather than trim it, and thus the City had a ministerial duty to remove the tree. However, the circuit court found that the City forester had evaluated the tree, trimmed it, and graded is as acceptable, and this was a discretionary action. The court noted that the forester had to make a judgment when evaluating the condition of a tree, and that the forester had done his job. Thus there was no ministerial duty to remove the tree.

Related Attorneys