QUESTION 2: During his 63rd year, defendant D’s wife died and he retired on his social security and a small pension. He moved out of the house he had lived in with his family for 35 years, into a smaller wood frame one in a residential neighborhood. About a year later, he became aware that an ailanthus tree was growing into the brick foundation. He consulted a friend who was a small time building contractor, and was told that unless he did something about the tree he would eventually have to replace that part of the foundation, at a cost of at least $10,000. He then called a local company that was in the business of pruning and removing trees. They told him that it would cost him about $4,000 to have the tree cut down and taken away.

$4,000 was his income for a month, so he decided to do the job himself. He was in good health. He owned a chain saw and some ropes, and he had often spent his lunch hour watching tree surgeons at work. The tree was about 30 feet high, but he knew that ailanthus wood is light and weak, being mainly water.

From his attic window, he tied a rope around an upper branch and then went outside and cut through about six of the 12 inches of the trunk. He pulled on the rope, in order to cause the tree to fall away from the street, along the side of his house, and into his back yard. What he didn’t realize was that he had made the cut on the wrong side of the tree (only an expert would have known this) so that, given its angle and the distribution of its foliage, the natural direction of its fall was toward the street. The tree wouldn’t budge, no matter how hard he pulled on the rope, and he found himself quickly out of breath and a little dizzy. He picked up the chain saw and cut further into the trunk, until he realized that the tree had begun to fall — toward the street! He tried to push it back and over into the right direction. He would probably have succeeded had he been a vigorous young man of 20. But he was too weak, and the tree fell into the street, severing an electric power line.

The power line had been put up twenty years before the accident by the Power Company, acting under technical specifications that had been approved by the state power regulatory commission. Two years before the accident, the regulatory commission had approved the Power Company’s proposal to replace all old power lines with new ones. The new model is strong enough to withstand the impact and the weight of a tree like that which D cut down. But at the time of the accident the company had fallen six months behind in the implementation of the replacement program. Had it not been for the delay, a new wire would already have been installed on D’s block.

It was a Sunday afternoon, and normally there would have been little if any traffic in D’s street. But it happened that P, an out of town motorist who had gotten lost, came down the street just as the tree was falling. If he had been obeying the 20 m.p.h. speed limit, instead of going 25, it wouldn’t have hit him, but it did. He was very frightened but unhurt by the impact. The roof of his car was dented. He slammed on the brakes and jumped out, stepping on the live power line and electrocuting himself.

His widow sues both D and the Power Company for the damage to her husband and to the car. Assume that she has the same rights her husband would have had if he had been injured instead of killed (i.e., there is no problem about interpreting a wrongful death statute in this case). Discuss the pros and cons of the issues that will arise in the case.