Park service settles lawsuit over woman's death for $1M - Albuquerque Journal

Park service settles lawsuit over woman’s death for $1M

Copyright © 2021 Albuquerque Journal

A towering ponderosa pine weakened by two lightning strikes in five years at Bandelier National Monument took the life of an 81-year-old grandmother visiting New Mexico in 2016 with her family for the Albuquerque International Balloon Fiesta when it toppled over in a gust of wind and fell on her.

The 70-foot-tall tree landed in a visitors parking area of the popular monument near Los Alamos five years ago just as the Chicago woman and her two adult children were getting into their rental car after a hike and watching a park movie.

Beverly Modlin

Beverly Modlin sustained head, spine and other injuries after the tree came crashing down, partially caving in the rental car and clipping her adult son Robert Modlin, who sustained minor injuries. Her daughter, Susan Hines, was already in the back seat of the car when she heard a “crack, boom” and the tree fell, according to park service investigators. Hines was uninjured.

A wrongful death lawsuit filed in 2019 contended the accident was no “Act of God,” alleging park officials had ample warning the tree posed a hazard to the public but took no steps to remove it.

Beverly Modlin’s family settled the case earlier this year for $1 million.

“I would hope that this was a wake-up call for the United States park service to take greater care to protect visitors to our national parks,” said Albuquerque attorney Jacob Vigil, who represented Modlin’s family.

A park service spokeswoman said in a statement that, “we continue to be saddened by the tragic accident that killed one of our visitors.”

She added that since that time, the park service at Bandelier has reviewed and revised its protocols for monitoring hazardous trees and makes every effort to identify and remove those that present an imminent danger to parking lots, sidewalks or other places where visitors are likely to congregate.”

The family had traveled to New Mexico for the Balloon Fiesta in October 2016 “to check it off their bucket list,” Vigil told the Journal. A visit to Bandelier was also on their itinerary. With its ancient cliff dwellings, Bandelier has attracted up to 200,000 visitors a year.

“They ended up with their mother killed in front of them and went back to Chicago alone, without her.”

Two weeks earlier, park employees realized the tree, the tallest in that area of the forest, had been struck by lightning for the second time in five years, according to an investigation by the park service.

“They had plenty of warning,” Vigil said. “They knew the tree was fragile and could harm visitors at any given moment. It was a ticking time bomb.”

The tree was adjacent to the path to the Amphitheater at the park where an opera that draws hundreds of visitors was scheduled in September 2016.

According to a park service investigation report:

A severe storm hit the park Sept. 16, 2016, blowing out an electrical transformer.

A lightning-damaged Ponderosa pine tree fell onto the parking lot of Bandelier National Monument on Oct. 3, 2016, killing Beverly Modlin as she was getting into this rental car. Photo courtesy of Jacob Vigil

A week later, a Bandelier ranger discovered the 70-foot Ponderosa Pine had been struck by lightning and sent a photo of the tree and a written report to his supervisor saying he believed the lightning strike of the tree was responsible for the power failure.

At least six additional Bandelier employees and then-Bandelier Superintendent Jason Lott also observed the tree in person and/or had knowledge of it having being struck. One employee noticed logs, or shattered pieces of a tree, on a trail for handicapped visitors

“We’re going to have to deal with it eventually, like it, you know it’s probably going to die and become a hazard to the parking lot and the trail,” said one employee in reporting a ‘big crack” in the tree to his supervisor, the investigation showed.

Though denying any negligence on the part of its employees, park service officials conceded in responses to the lawsuit that none of its employees had any formal training in how to identify hazardous trees and there were no documents showing there had been a thorough inspection of the hazards posed by the tree prior to its fall. There was no hazard-tree trainer at the park nor a training curriculum for identifying hazardous trees.

It was an unwritten practice of Bandelier employees to notify the Wildland Fire Division, which is under the management of the monument, to have wildland fire sawyers assess hazardous trees for removal.

But the lawsuit alleges Bandelier never notified that agency to assess the lightning-struck tree.

Earlier that year, a fire crew did assess and “mitigate”about 12 trees in the park’s Juniper Campground, but focused on standing dead trees that leaned over high traffic areas such as trails or picnic areas.

The 70-foot damaged tree, adjacent to the parking lot and up to 23 inches in diameter, had a full and healthy crown with dense green foliage and didn’t appear to be leaning, park employees told investigators after Modlin’s death.

“We have a lot of lightning strikes on the rim with trees,” park ranger Geoff Goins was quoted as saying. “As many trees as gets struck by lightning around here, I didn’t think of it as a big deal.”

The park service wasted no time cutting down and disposing of the fallen tree the day after Modlin’s death, the lawsuit stated, but generated a report that based on callus growth, the tree had an exterior wound from its top to its base that was over five years old, which appeared to have been caused by a previous lightning strike. There were two other wounds, one which was new and deemed “significant” from the second lightning strike.

According to Bandelier’s “Hazard Tree Management” standard operating procedures, “As even healthy trees can fall under extreme weather conditions, the park will attempt to issue visitor warnings when deemed appropriate.” The program is designed to protect the public and shield the agency from potential liability.

But there are variety of hazards “inherent to a natural environment and which include hazard trees. Visitors and park staff should be aware of these inherent dangers and hold the National Park Service harmless for ‘Acts of God.'”

The 70-foot damaged tree adjacent to the parking lot didn’t appear to be leaning, park employees told investigators after Beverly Modlin’s death.

The day the Modlin family visited Bandelier, wind gusts up to 36 miles an hour were recorded. There were no warnings to the public about the 70-foot tree, which fell about 28 feet west of the Atomic City bus stop and Frey Trailhead, according to the lawsuit and investigative reports.

A park service investigator quoted Robert Modlin, an engineer, as saying his mother was off to the side of the rental car when they heard the crack of the tree falling.

“The most surprising thing to me was how fast, all of a sudden, it got very windy,” stated Modlin, who was standing behind the vehicle.

Several bystanders helped him pull his mother out from under branches of the tree so he could do mouth-to-mouth resuscitation.

“I couldn’t hear a breath and her color was gone immediately,” he stated.

Robert Modlen recalled not feeling any emotion when emergency crews arrived and tried unsuccessfully to resuscitate his mother.

“There were no tears at that point, that didn’t hit me until when I was in the ambulance and I couldn’t stop crying.” He added: “She and I were very tight, she was in such good shape for 81.”

Later he thought of what he could have done differently when the tree began to fall.

“I thought why didn’t I pull her out of the way, push her, do something,” he later told investigators. But Robert Modlin said he later had a dream that helped him “to come to grips” with not being able to save her.

It happened too quickly for him to act, he told investigators. “And if I had gone toward her I would have been crashed by that tree as well.”

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