Badly injured when a cottonwood tree limb fell on him last June while he and his family were enjoying an outdoor film together at Veterans Park, Dave Myers has worked through a number of resulting physical and mental hardships.
Those hardships have included relearning to walk, enduring two major surgeries and undergoing therapy to treat depression and post-traumatic stress disorder.
Friends, family and the community "pulled together in my greatest time of need in a way I could never have imagined,” Myers wrote in an email. “The support they all lent to my family while I was hospitalized was on an epic scale.”
Friends organized a fundraiser to help with medical expenses, and “strangers donated to the GoFundMe page simply because they felt it was the right thing to do … I’m convinced that without them, things would have been much more difficult for us.”
The branch from the tree pierced the left side of Myers’ chest about four inches below his armpit, breaking three ribs. The branch “tore through and collapsed my left lung, punctured my diaphragm, went through my stomach and clipped my spleen,” he said. It left debris in his lung, which became infected. Within days, “I went septic, a condition which can very quickly result in organ failure and death.”
The tree in the park has since been removed.
Myers, 34, had two major operations. In the first, surgeons cut into his abdomen “to correct the damage done to my diaphragm and stomach and to put everything back into place, as my stomach had pushed itself into my chest cavity.”
During the second operation, the surgical team cut into his back beneath the shoulder blade to clean out debris lodged in his lung.
He was on life support for days, “and many more days with machines breathing for me,” he said. The incision in his abdomen reopened and could not be closed, which resulted in “a very long healing process and a very large, disfiguring scar," he wrote in a message to The Gazette.
These days, “things are definitely much improved,” although “every day still presents its own set of challenges,” he said. Myers, a Navy veteran, does warehouse and delivery work for Yellowstone Paper Co., where his co-workers “are understanding, and lend assistance wherever I need it. I do my best not to allow my limitations to inhibit my life, but some things are simply beyond my capabilities now.”
The incident reduced his lung capacity, and “I now have a drastically reduced lift capacity,” he wrote. In addition, he contends with “daily discomfort, ranging from mild aches to stabbing pain.”
In October, Myers and his wife Heather, on behalf of their young son, sued the city of Billings, claiming the city “acted in a negligent, willful, wanton, or reckless manner when it failed to remove the subject cottonwood” from Veterans Park.
In the lawsuit, their attorney, Veronica Procter, argues that an assessment by a certified arborist indicates the soil at the base of the cottonwood tree was “extremely wet or over-saturated.” The recent installation of an automatic underground irrigation system changed the pattern and amount of water the tree had “grown accustomed to over the past decades,” the lawsuit states. There are also no large trees in the surrounding area to protect the cottonwood from “abnormal winds," according to the lawsuit.
The plaintiffs seek fair and reasonable damages, their lawsuit says, as well as the cost of past and future medical care, lost wages and benefits, lost household services, attorney fees and “appropriate and further declaratory relief."
In the city’s Nov. 17 response, filed by the Hall & Evans law firm, the city says the Myers’ lawsuit “fails to state a claim for which relief can be granted.” Damages, “if any … may have resulted from acts of God, therefore recovery may be limited (by state law) or barred."
Billings City Attorney Brent Brooks, who will be working with Brian L. Taylor of Hall & Evans on the case, said that the city's Parks Department has a maintenance schedule for trees inside city parks, "and it looks like that tree was properly maintained."
"No one doesn't believe that this was a most unfortunate occurrence," Brooks said. "We don't know at this point how often (the cottonwood) was maintained, but it appears it had been included in that regular maintenance schedule."
The claim is covered by the city's insurer, the Montana Municipal Interlocal Authority. The city must pay a $50,000 deductible toward defense costs.
Judge Mary Jane Knisely has set a scheduling conference with the two parties at 10:30 a.m. Jan. 9.