DECISION AND ORDER Plaintiffs Lori and Emily Fingerhut seek to recover for personal injuries sustained on July 26, 2005, when a tree near Heinz Beach, located on the property of the Chautauqua Institute, fell on Lori during a storm. The plaintiffs initially commenced this action against the Chautauqua Institute Corporation (the “Institute”), as owner of the premises, as well as several other parties. At this stage of the proceedings, the Institute is the sole remaining defendant, Docket Item 1 at 5-38, and it has moved for summary judgment. Docket Item 143.1For the reasons that follow, the Court denies that motion.BACKGROUND2On July 26, 2005, a severe thunderstorm swept across New York’s Southern Tier, including the Chautauqua Institute. Pl. Ex. I. Lori Fingerhut, then age fourteen, was on the grounds of the Institute when she was struck by a falling tree. Def. Ex. C at 2. She sustained severe trauma, including multiple orthopedic, neurological, and psychological injuries, which resulted in a twelve-week hospitalization and multiple surgeries. Docket Item 122-3 at 3-16; Def. Ex. C at 4-5.The Institute is a non-profit corporation that operates a 750-acre community on Chautauqua Lake. As part of its programming, the Institute hosts lectures, faith and religious programs, youth activities, and outdoor recreation such as golf, tennis, and boating. See www.chq.org (last accessed April 20, 2018).To maintain its grounds, the Institute uses an Operations Department. Pl. Ex. A at 13. Douglas Conroe has been employed at the Institute since 1984 and has been its Director of Operations since 1994. Def. Ex. E at 6, 11. The Operations Department has a tree-care budget for removal, trimming, and planting of trees. Def. Ex. F at 34, 37. Property owners at the Institute regularly call the Operations Department with concerns regarding trees both on their own property and in common areas. Def. Ex. E at 26, 61; Def. Ex. F at 15. The Institute retains independent contractor arborists to assess, trim, and remove the trees on its grounds. Def. Ex. E at 25.One such arborist was J.A. Curtiss,3 who began servicing trees in 1971. Def. Ex. H at 11, 16-17, 24-25. Mr. Curtiss and his family business serviced the trees at the Institute through the date of the accident.4 Def. Ex. H at 55. The Institute provided Mr. Curtiss with lists of trees about which residents had reported a problem, and Mr. Curtiss inspected them to determine whether they were healthy or damaged. Def. Ex. F at 16, 17; Def. Ex. H at 56-57, 60. Mr. Curtiss would advise the Institute about which trees required further attention. Def. Ex. H at 140-41. In addition, if Mr. Curtiss observed trees that were not on the list but that required attention, he would advise the Institute about what needed to be done. Def. Ex. H at 60, 61, 142. Mr. Curtiss believed that based upon his experience, he could look at a tree and tell whether it was healthy or in decline. Def. Ex. H at 80.Mr. Curtiss provided the Institute with an annual recommended work schedule for tree maintenance. Def. Ex. F at 19, 117; Def. Ex. H at 149. In connection with that schedule, he compiled a list of maintenance recommendations for the grounds and sought approval for the recommended work. Def. Ex. E at 32; Def. Ex. H at 124,126. If a tree was a potential safety hazard, that tree was placed at the top of the list. Def. Ex. E at 32.In the years leading up to the incident, every item on Mr. Curtiss’s list of recommendations was approved by the Institute. Def. Ex. E at 31. Mr. Curtiss specifically performed work near Heinz Beach on South Lake Drive along the edge of the lake — the area where the tree fell on Lori Fingerhut. Def. Ex. H at 84-85. Mr. Curtiss believed that “[t]here was nothing to do” to the trees in that area. Id.The Institute also contracted with Taylor Tree Service to evaluate and remove trees on the grounds. Def. Ex. E at 19, 25; Def. Ex. F at 52, 116; Def. Ex. H at 40. Both tree-service companies would alert the Institute to needed tree maintenance or concerns. Def. Ex. F at 116. According to Mr. Conroe, the Institute maintained “constant interaction with Curtiss or Taylor Tree Service as to what they see, what we are looking for, what we need to do. So [the Institute's] prevent[ion] would be ongoing discussions with people who have awareness.” Def. Ex. F at 109.PROCEDURAL HISTORYOn August 1, 2007, the Fingerhuts commenced this action against the Institute, claiming that the negligent maintenance of Institute property resulted in the injuries to Lori Fingerhut. In response to the Institute’s interrogatories, the Fingerhuts claimed that the Institute was negligentin the selection of the type of tree that caused this accident, in allowing said tree to remain adjacent to Heinz Beach, in locating said tree adjacent to Heinz Beach, in not removing said tree prior to the incident complained of herein, in failing to properly inspect the tree, in failing maintain the tree; in failing to properly repair damage to the tree, failing to properly recognize the deteriorated nature of the tree which struck plaintiff, failing to remedy the deteriorated nature of the tree prior to the incident, failing to utilize procedures which would have aided in the detection of the deteriorated nature of the tree, failing to monitor its property for dangerous conditions, failing to warn of the danger relative to the subject tree, hiring improperly trained or qualified persons to inspect and/or maintain the tree, failing to adhere to appropriate standards and practices relative to tree maintenance, carelessly and negligently allowing said deteriorated tree to exist in a high profile and heavily frequented area.Def. Ex. C.The Institute now argues that it had no notice of a problem with the tree and therefore could not have done anything to prevent the accident. Docket Item 143-14. In this regard, the experts for both the plaintiffs and the defendant agree that a fungus known as Ustulina — also known as the “silent killer” of trees — had weakened the tree that fell. Def. Ex. I at 39-42, 166, 179; Def. Ex. J at 64-65, 88-89. But, not surprisingly, they agree on little else.According to the defendant’s expert, Dr. Daniel Marion, the internal cavity of the tree and internal rot became visible only when the tree fell and split open. Def. Ex. I at 42; Def. Ex. D. But Brian Sayers, the plaintiffs’ expert, concluded that there must have been a visible cavity in the tree — a cavity that was not visible in the post-accident photographs only because the location of the cavity is where the tree split. Pl. Ex. K at 83-86.More specifically, Dr. Marion opined that a tree, such as the tree at issue here, could rot and decay on the inside but look perfectly normal on the outside. Def. Ex. I at 167. Mr. Sayers, on the other hand, said that the internal rot of a tree was exhibited by a visible condition called “butt-swelling,” which appears as a bulge in the tree’s trunk. Def. Ex. J at 107-08; Pl. Ex. K at 77-81, 117. According to Mr. Sayers, butt-swelling is strong evidence of decay, Pl. Ex. H 6, and would have been noticeable even to the untrained eye: “[h]omeowners often notice something funny about my tree, you know, there’s a bulge in my tree….” Pl. Ex. K at 117.The experts also disagreed on what the tree’s canopy said about its health. Dr. Marion noted that post-accident photographs of the fallen tree showed “copious amounts of foliage” on its branches but that there were areas with no leaves. Def. Ex. I at 78; Def. Ex. D. Mr. Sayers estimated that the leaf canopy on the tree was 80-85 percent full, Def. Ex. J at 83, but said that “80 to 85 percent full may sound like a lot but it is not and it is indicative of a tree that is under stress and declining…. [T]he tree canopy was thinning and while some areas had leaves on them, there were many other areas that had bare branches and bare limbs….” Pl. Ex. H 8. He also said that a thinning canopy can be a sign of Ustulina fungus. Pl. Ex. K at 89-91.Mr. Sayers noted that white structures, or stromata, were visible on the tree in the post-accident photographs. Def. Ex. J at 64-74. He opined that the stromata were other visible evidence that the tree needed attention. The size of the stromata are less than a fist — approximately two inches by two inches — and they are observable only for a two-week period in spring or early summer. Def. Ex. I at 163; Def. Ex. J at 72, 74. But Mr. Sayers swore that “the existence of the stromata is clear and unrefuted evidence that an active fungus decay process is occurring inside the tree.” Pl. Ex. H, 12. And he said that the presence of stromata can be a visible sign of the presence of the pathogen Ustulina. Pl. Ex. K at 75-76.Dr. Marion opined that the Ustulina entered the tree through its root system. Def. Ex. I at 149, 152, 153. Mr. Sayers did not dispute that Ustulina can enter a tree through the roots, but he said that he had never seen it spread through the roots of a red maple, the type of tree at issue here. He opined that Ustulina did not enter the tree through its roots. Def. Ex. J at 88; Pl. Ex. K at 89; Pl. Ex. H
