Schwelb, Ruiz, and Washington, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge.
Appeal from the Superior Court of the District of Columbia Civil Division (Hon. Richard A. Levie, Trial Judge)
Appellant, John Katkish, sued the District of Columbia for negligence for property damage caused by a tree that fell on his house. He appeals the decision of the Superior Court in favor of the District. Katkish contends on appeal that the trial court erred in not finding the District negligent and ruling that expert testimony was necessary to establish a standard of care. He also contends that the trial court erred in not drawing an adverse inference against the District because it omitted an employee with personal knowledge about the circumstances of the case from its witness list and failed to identify the employee in its response to appellant's interrogatories. We affirm.
Appellant testified that on May 27, 1994, a large tree fell on his house. Appellant had called the District of Columbia Tree and Landscape Division of the Department of Public Works on May 20, 1994 to complain about this tree because he noticed the tree had shifted and was leaning more prominently toward his house. Appellant testified that he represented to the employee who took the call that this was an emergency situation and the sidewalk was cracked and uplifted. The Tree and Landscape Division's record of the call, however, shows the caller reporting a tree that is "dead" and "leaning." The trial court found that appellant had not conveyed the emergency nature of the situation, noting that appellant did not call or write the District again after May 20, and that even though appellant saw a Tree and Land Division crew in front of his house a few days after his call, he did not approach them about the tree in front of his house.
Appellant called Mr. James Biller as an expert arborist. Mr. Biller testified that a sixty-foot oak tree leaning toward a house with a lifting curb would warrant immediate inspection and possible abatement. The trial court rejected the opinion of Mr. Biller because he failed to define a national standard of care for the maintenance of leaning trees or the response time to notification of that condition. In addition, Mr. Biller based his opinion on what Virginia municipalities do and lacked familiarity with the District of Columbia's horticultural situation and how it compared to that in Virginia.
Appellant also called Mr. Thomas Mayer as an expert in utility arboriculture. Mr. Mayer's testimony was rejected by the trial court because he did not specify a national standard or one relating to comparable municipalities. The trial court observed that, "neither Mr. Mayer nor Mr. Biller presented any standard of care that related curb and street changes to a need for inspection and response." The court also rejected the portions of Mr. Mayer's and Mr. Biller's opinions based on hypothetical questions because they rested on the portions of testimony of Mr. Katkish, that the court did not accept, about the emergency nature of the situation.
2. Missing Witness Inference
On the first day of trial, Ms. Sandra Hill, a D.C. Department of Public Works employee, testified that Alvin Baltimore was the data entry clerk who apparently took the call from appellant on May 20. After the close of the evidence, appellant asked the trial court for an adverse inference against the District, under the missing-witness presumption, because the District had offered no explanation as to why Alvin Baltimore, a current employee of the District, did not testify. The trial court questioned whether Mr. Baltimore was "peculiarly available" to the District and why appellant's attorney did not attempt to contact Mr. Baltimore once his identity and current employment was established. The trial court did not draw an adverse inference from the District's failure to call Mr. Baltimore as a witness.