Eden Prairie family sues city after falling tree kills woman

  • Article by: KELLY SMITH , Star Tribune
  • Updated: August 29, 2014 - 7:43 AM

A decaying basswood killed Nina Mackay, 56, in July 2013.

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A bench in honor of Nina Mackay, killed by a falling tree, is near where the Eden Prairie woman died.

Photo: Paul Klauda • paul.klauda@startribune.com,

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More than a year after an Eden Prairie woman was killed by a falling tree, her family has filed a wrongful-death lawsuit against the city, saying it failed to properly inspect and remove the old basswood tree.

The large tree fell on Nina Mackay, 56, as she walked her dogs near Mitchell Lake in July 2013. Her family now says that the estimated 90-year-old tree was decaying and full of insects, claiming in a Hennepin County District Court lawsuit that the city should have known about it and removed the tree from public land. The city’s “negligence and carelessness,” their lawsuit alleges, caused Mackay’s death.

“Do they have to get every tree? No, but should they get those that are clearly and obviously diseased to protect people in the area? Yes,” said Jeffrey Montpetit, attorney for the Mackay family. “We believe [her death] was preventable.”

City Attorney Joseph Nilan said in a filed response that the city denies it was liable, citing a state statute that cities are immune from liability in parks and recreation maintenance issues, asking the case to be dismissed.

On Wednesday, crews were spotted clearing trees along the Southwest Regional Trail in Eden Prairie. But the city said Thursday that city crews are doing standard tree removal, with the city clearing about 1,000 diseased and hazardous trees each year.

On July 5, 2013, Mackay and a friend were walking her dogs on the trail near the intersection of George Moran Drive and Belfast Cove. That’s when, the family’s lawsuit says, the “enormous rotted tree, approximately 3- to 4-feet wide at the base,” fell. Witnesses told police that they heard a loud cracking sound that sounded “like fireworks gone bad” after the July 4th holiday. Winds were measured at 23 miles per hour, well below a level typically needed to knock down a tree that size.

While Mackay’s friend was pushed out of the way, Mackay was pinned under the tree.

After the incident, the city extended their condolences to the family, adding that the city has one full-time forestry technician, two seasonal tree inspectors and a full-time park maintenance staff member who remove diseased and hazardous trees from city property. The city said it also relies on residents’ help because there are so many trees.

In June in St. Paul, the City Council approved a $124,000 settlement for a woman from Lake City, Minn., who was injured when she tripped over a snow-covered 3-inch stump along a downtown St. Paul sidewalk more than two years ago. While the city denied liability, the settlement covered medical bills that resulted from the incident and ended any further claims.

In the Eden Prairie lawsuit, filed earlier this month, Montpetit alleges that the land is owned and maintained by the city, and the tree should have been identified as a “hazard tree” or a tree with a significant structural defect. For years, he said, the tree had a significant cavity near the trunk with insects, mushrooms and other fungal activity — all indicating the tree “showed numerous signs and symptoms of catastrophic failure … which would have been obvious to any person conducting a reasonable inspection.”

The city says the tree did have a cavity, but said it can’t know how long the tree had the cavity and denies the lawsuit’s allegations. Nilan said the city is immune from liability due to state statute.

Mackay was an active volunteer in Eden Prairie schools and youth sports associations, and was also involved in multiple civic organizations. She’s survived by her husband, a 22-year-old son and a 19-year-old daughter.

 

Staff writer Paul Klauda contributed to this report. Kelly Smith • 612-673-4141

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