Court Clears Mary Lou Walen's $5 Million Falling-Tree Claim Against the United States to Go to Trial

On October 29, 2012, at about 3:15 p.m., Mary Lou Walen was walking along the west side of Connecticut Avenue NW in Washington, D.C. As she crossed the Connecticut Avenue Bridge, the span over the Klingle Valley in Rock Creek Park that locals call the Klingle Bridge, a tree limb fell without warning and struck her. Hurricane Sandy was moving through the District that afternoon.

The limb crushed her. According to the court record, Walen suffered 23 bone fractures, went through multiple surgeries and extended rehabilitation, and ran up hundreds of thousands of dollars in medical bills. She filed an administrative claim with the Department of the Interior. When the agency took no action, she treated the claim as denied and sued.

Represented by John J. Yannone of Price Benowitz, Walen brought a Federal Tort Claims Act case against the United States and the District of Columbia. The trees over the bridge fell under the maintenance jurisdiction of the National Park Service, which manages Rock Creek Park, and the District. Walen argued that both had a duty to inspect and maintain those trees and to keep records of that work, and that their failure, not the storm itself, caused her injuries. She sought $5 million in compensatory damages.

The government moved to dismiss for lack of jurisdiction, arguing the discretionary function exception to the FTCA shielded it because tree-care choices were a matter of agency judgment. On March 31, 2017, Chief Judge Beryl A. Howell rejected that defense. She held that the United States was not immune and could be sued, while dismissing the individual federal agencies as improper defendants. The claim against the United States survived. That ruling is reported at 246 F. Supp. 3d 449.

Over fifteen months of discovery, Walen's arborist, Lew Bloch, examined photographs of the fallen debris and concluded the limb "had been dead or dying and decaying" for three to six years and was large enough that a tree risk assessment should have caught it. The record showed the District's transportation department did not routinely inspect the Klingle Valley trees, relying instead on residents to report hazards.

The United States and the District each then moved for summary judgment. On September 9, 2019, Judge Howell denied both motions. Whether the storm or the defendants' neglect caused the limb to fall, and whether Walen acted reasonably in going out during the storm warnings, were questions for the trier of fact. Howell directed the parties to confer on trial dates, leaving Walen's $5 million claim set for trial.