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I wonder if a landscaper could be held liable for something like this if he had made the tree selection and did the planting?
Short Answer: quite possibly.
My initial thought is that liability could turn on three issues: 1) Statute of Limitations; 2) Statute of Repose; 3) Contractual Provisions, i.e. an Allocation of Risks/Indemnification Clause. This is not an exhaustive analysis, and other claims & defenses may apply.
Generally:
1) Statute of Limitations: A statute of limitations starts running at the time a claim accrues. Ordinarily, that is the time at which an injury is suffered. For example, if you are injured in an auto accident, and your state has a 2 year statute of limitations for personal injuries, you must bring a claim (lawsuit) for damages within two years of the date of the accident. Statutes of Limitations for contract claims are usually longer (3-15 years).
2) Statute of Repose: A statute of repose is different from a statute of limitations, in that after the statutory period has expired it is not possible to file a lawsuit even if an injury occurs after that time. For example, if there is a twenty year statute of repose on the manufacture of an aircraft, a claim cannot be filed against the manufacturer more than twenty years after the date of manufacture, even if a design or manufacturing defect is responsible for a later accident. I have not looked to see if trees have a specific statute of repose (they might, in some states)- they could fall under "construction defects".
3) Contractual Provisions: Generally, it is possible to extend/shorten by agreement the statute of limitation. However, there are some instances where contractual language will trump the statutes of limitation and repose by way of an allocation of risk or indemnification clause stating the designer, architect, engineer etc. will indemnify the client for damages suffered (sometimes called a "hold harmless" clause). An express (and unqualified) promise to indemnify a client can override the statute of repose and create almost indefinite exposure. Hold harmless/indemnification clauses are fairly common boilerplate, particularly in commercial contracts. Read them carefully.
Statutes of Limitation and Repose vary from state to state, and are often different depending on the type of contract (written or oral) or product involved.
I can easily see how tree damage could be likened to damage caused by improper grading/drainage- latent defects that sometimes don't materialize for years, but when they do, cause big problems. These can be complex cases and quite difficult/expensive to defend.
Happily, contractual provisions can usually be used to limit liability for this type of problem. Good plant selection & proper location also helps.
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