[ad_1]
The widow of the man who in 2015 was the fatal victim of the fall of a large tree on Rua Machado Vilela, in Braga, asks the Braga Chamber in the Administrative Court for 80 thousand euros in compensation, O MINHO learned from a source linked to the process. The lawsuit says that the fault of the death lies with the City Council, but the Municipality rejects the thesis.
The sum requested by the widow, named Sofía, translates into 50,000 for her and 15,000 for each of her two children. To which interest is added at the legal rate if the judge is right.
On May 4, 2015, at 2:40 p.m., José Luís de Sousa, 41, was walking along the boardwalk of that artery, next to the East River; It was a windy day and it threatened to rain … suddenly, without anything to make him wait, an oak tree fell on the victim causing multiple head injuries The action, signed by the lawyer Amado Filho, indicates that the victim had no chance to escape … Assisted in the act by the INEM, who intubated him, he was transferred to the Braga Hospital where he underwent a CT scan: he ended up succumbing after two cardiorespiratory arrests two hours after the accident.
The tree was planted along the sidewalk and near the crosswalk and its fall was a direct cause of death.
In the lawsuit, the widow says that she died “solely because of the services”, since the tree had serious structural problems, with visible weaknesses in the area of rupture, with signs of rot.
It indicates that, within the framework of its legal powers, the Municipality has the duty to care for, monitor and treat street trees and has specialized technicians, both for cutting and pruning, as well as for their inspection. What – he maintains – was not done ignoring the technical and prudential regulations that prevent falls.
It emphasizes that the day was windy (80 to 90 km / hour) but this is not adequate to make a tree fall under normal phytosanitary conditions. And remember that an identical one had already fallen in 2014.
“The services did nothing, did not analyze the state of the tree and those who are nearby violated the duty of care,” he accuses.
Justifying the claim for compensation, she says that after the death of her husband, who was “a healthy person”, the widow began to walk sadly and without joy in life, and with difficulty paying the education expenses of her children and home. And that the children “suffer a lot from the death of an extremist father.”
Bounce chamber
In the defense of the family’s petition, the lawyer representing the Chamber, Paulo Viana, says that the tree in question was in perfect phytosanitary condition, with the roots in good condition (as it was verified through the fall, already that were visible) ”.
He says it was “healthy, robust, solid and well established, without signs of fragility or diseases that could affect its sustainability.” And, continuing, he says: “the tree in question had been pruned in early autumn 2014, according to an annual plan carried out by the municipality, which also includes an assessment of the state of the municipality’s tree heritage, which is carried out periodically by municipal officials ”.
The lawyer points out that “the assessment carried out by the municipality consists of macroscopic inspections, which focus on the presence or absence of fungi on the trunk of the tree, verification of the existence of rot and other signs that may indicate a phytosanitary problem in the trees. ”.
For this reason, he affirms: “until the day of the event, no symptoms or signs had been detected in the tree in question that suffered any problem, nor has this ever been reported to the Municipality. by third parties.
Disputed experience
Paulo Viana recalls that “he contested the study carried out on the state of the tree”, saying that “it cannot be considered, due to the alleged expert opinion that is carried out five months after the tree fell and it is unknown in what conditions and location the tree was found. guarded tree ”.
In addition, the test does not even draw conclusions, so it seems more like an impression than a technical judgment.
The Municipality insists that “the fall of the tree occurred for a reason totally beyond the will, action and responsibility of the Chamber, as a consequence of abnormal weather conditions that were felt on the day in question, with periods of heavy rains and heavy Gusty winds in the order of 80 to 90 km / h. These strong winds, associated with the abundant rainfall, were the direct cause of the fall of the tree, and the Chamber cannot control meteorological events or take actions to avoid a phenomenon that is sporadic and that is outside its control.
Fortuitous cause
And to conclude, he emphasizes: “The climatic conditions verified on the day in question constitute a fortuitous cause or force majeure, that the surveillance and inspection that the municipal services maintain on their arboreal heritage cannot prevent falls, since there are no directed measures to avoid unpredictable situations that exceed human capacities ”.
Therefore, “it is not possible to demand any other action from the Municipality, and resulting in the assumption of cause that is not attributable to it, there is no wrongful act and therefore an obligation of compensation.
Insurer called
Remember that the Chamber signed an insurance contract with “Axa Portugal, Companhia de Seguros, SA”, which covers civil liability against third parties for damages caused in the exercise of its functions and powers, so it has an interest in summon said Insurer to intervene in action ”.
It also requires notification from the Portuguese Institute of the Sea and Atmosphere to report the amount of precipitation that occurred in Braga on the day in question and the maximum wind speed.
[ad_2]
