When asked by the Otago Daily Times yesterday, Preston Russell Law partner Russell Ibbotson, of Queenstown, said it was "an act of God" if a tree fell and caused damage, injury or death and it was unforeseeable.
However, now the council had received the risk management survey pertaining to the trees from consultant arborist Frank Buddingh, of Lawrence, and heard his verdict 64 of the 67 poplars "are unsafe and require removal", the council was liable for not acting immediately to protect the public.
Mr Ibbotson said knowledge was what made inactivity negligent.
For it to be criminal negligence, a major departure from the standard of care would have to occur.
"The council is now advised that it is foreseeable other trees could fall.
"It could therefore be culpable manslaughter if another tree falls and a death occurs.
"Council owes the public a duty of care to a standard that protects from such a foreseeable event."
Preston Russell Law Crown prosecutor Michael Morris, of Invercargill, said the maximum penalty for the criminal charge of endangering transport is 14 years' imprisonment under the Crimes Act.
The maximum penalty for manslaughter is life imprisonment under the Crimes Act.
"The council" would be liable because it is a body corporate, Mr Morris said.
Farmer and businesswoman Cindy Liggett criticised the council this week for not immediately removing the row of poplars, or closing Lower Shotover Rd to traffic until the trees could be felled by a contractor.
It has been 11 weeks since her husband of almost 35 years, Russell Albert Liggett (57), was killed by a 20m-high, 100-year-old poplar tree, which fell in high winds on his utility vehicle.
When asked if Mrs Liggett could sue the council, Mr Ibbotson said it was "too difficult to tell, because it depends on the state of knowledge that both parties had about the state of the trees.
"I think it would be doubtful, because the test is, was it foreseeable and was there a duty of care owed to Mr Liggett?"
A 30m-high, 100-year-old poplar toppled in high winds, 2km from Lower Shotover Rd, on Friday.
Chief executive Duncan Field said the council's legal advice was "it very much depends if council was reasonable in the way we've gone about managing this thing since we got that knowledge".
Mr Field said it would take a week to prepare the tender specifications for the removal of the poplars, followed by "a short period" for responses.
"If we get any more high winds in the meantime, what we do could include signage, but otherwise we're responding to it as promptly as we can."
