Case of the Day – Thursday, February 22, 2018

NO GOOD DEED…

Regular readers of this blog – all three of you – know by now that one of the benefits to Harry and Harriet Homeowner that flow from hiring an independent contractor to remove a tree is that when things go south on you, such as the tree falls on somebody’s house or a tree service employee takes a header from 100 feet up, you aren’t liable.

This isn’t always true. If Harry and Harriet have superior knowledge of the particular latent danger which causes an injury to the contractor, they may be liable. Likewise, if Harry can’t keep his nose out of things, and starts participating in the tree removal, he may be liable for injuries resulting from injecting himself into the contractor’s work. Generally (and reasonably), however, the law protects people who hire the experts and then leave them alone to do their jobs.

So what was Tony Cox’s problem? First, he was a tightwad, not wanting to drop a grand on removing a hazardous tree. So instead hiring the experts, he decided to cut it down himself. After all, he had a saw and gravity to assist him. What could go wrong?

Then, there was Tony’s acrophobia. To solve this problem, he recruited his neighbor Dick Strayer. Dick wasn’t afraid of heights. He climbed radio towers for a living (usually using a safety rig that attached to the towers). Plus, he cut down trees on the side.

Hey, Dick, Oscar Wilde (or maybe Clare Booth Luce, who knows for sure?) said no good deed goes unpunished. What do you suppose he meant by that?

Dick and Tony began cutting. Dick was in the tree, because Tony, as we mentioned, was afraid of heights. Dick was sawing away on a limb when something happened. No one really saw the accident, but everyone saw Dick, as well as the decayed limb he had been sawing, on the ground.

Of course, a lawsuit ensued, because otherwise we would not be writing about this tragedy-in-a-teapot to begin with. Dick claimed Tony was liable for his injuries because Tony did not tell him the limb was rotten, and Tony was actively participating in the tree-removal job. Lucky for Tony, the court was convinced that Dick’s tree experience and his position astraddle the rotten branch made the hazard open and obvious to Dick. What’s more, the court held, Tony did not owe Dick any duty under the participation exception to a property owner’s general lack of duty to an independent contractor, because while Tony was on the crew, he did not “actively participate” by directing the activity that resulted in Dick’s injury.

Strayer v. Cox, 38 N.E.3d 1162 (Ct.App. Miami Co., 2015). Richard Strayer was injured while attempting to cut down a tree located on the property owned by his neighbor, Anthony Cox. Dick Strayer had some qualifications for the job: he been involved in various types of residential and commercial construction, and had been employed climbing cell phone towers. Prior to the accident, he had climbed trees 20 to 25 times to cut them down.

At some point, Tony decided that he wanted to remove a 25’ tall tree in his front yard. Tony presumed it was dead, and he balked at the $1,000 estimate from tree services to remove the tree. So he told Dick he wanted to take the tree down, and asked Dick to help because he was afraid of heights.

Dick first inspected the tree, and thought it looked “okay,” although he later admitted no one short of a tree expert could have told that any of the branches were rotting, and Tony would have had no way to determine if there was rotting or damage to any of the limbs.

At one point, Dick’s feet were on the base of the tree (where a branch met the trunk), and he was standing in the middle of a series of big limbs about 12 feet up. Dick began cutting a branch with his chainsaw. The next thing he knew, he had fallen to the ground, riding the rotted-out branch all the way down. As a result of the fall, Dick hurt his left ankle, which required surgery.

Dick sued, but the trial court granted summary judgment for Tony and his insurance carrier. Dick appealed.

Held: Dick’s lawsuit was thrown out. The appellate court ruled that  the trial court did not err in rendering summary judgment in Tony’s favor. The court held that the undisputed facts showed Tony had no duty to protect Dick from an open and obvious hazard on Tony’s property. Furthermore, Tony did not owe Dick any duty under an exception to a property owner’s general lack of duty to an employee of an independent contractor. Tony did not “actively participate” as required for application of this exception by directing the activity that resulted in Dick’s injury, by giving or denying permission for the critical acts that led to Dick’s injury, or by exercising sole exclusive control over a critical variable in the working environment.

The Court said, “It is fundamental that in order to establish a cause of action for negligence the plaintiff must show the existence of a duty, a breach of that duty, and an injury proximately resulting therefrom. The status of the person who enters upon the land of another ( i.e., trespasser, licensee, or invitee) defines the scope of the legal duty that the landowner owes the entrant.” Here, Dick was an invitee, someone who rightfully came onto Tony’s property by invitation, express or implied, for a purpose beneficial to Tony, to wit, the removal of the tree.

An owner owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so that invitees are not unnecessarily and unreasonably exposed to danger. However, the Court observed, the owner does not act as an insurer of an invitee’s safety and owes no duty to protect invitees from open and obvious dangers on the property. Open and obvious hazards are those hazards that are neither hidden nor concealed from view and are discoverable by ordinary inspection. The question is always whether an invitee exercising ordinary care under the circumstances would have seen and been able to guard himself against the condition.

“Liability only attaches when an owner has ‘superior knowledge of the particular danger which caused the injury’,” the Court wrote, “as an ‘invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate’. The open and obvious doctrine is determinative of the threshold issue, the landowner’s duty. In the absence of duty, there is no negligence to compare.”

Dick was barred from recovery because the deteriorating tree was an open and obvious hazard that he freely ascended. He was in a better position to assess the safety of standing on the branch. Naturally, the Court held, Tony had no duty to warn Dick about dangers of which Tony was unaware, such as that the limb Dick was cutting was deteriorating from the inside, decay that was not observable from the outside. In addition, the court observed that Dick had significant experience with cutting trees and that the risk of encountering deteriorating branches was open and obvious.

Dick also argued that Tony should have contacted a certified arborist prior to removal to conduct a risk assessment of the tree. He claimed Tony’s failure to have a risk assessment conducted violated American National Standards Institute (ANSI) sections Z133 and A300, part 1 and 9, which require that any tree being worked on “undergo a tree risk assessment for tree worker safety.” But the court ruled that homeowners like Tony are not subject to the requirements of ANSI, even if the standards were not voluntary to begin with (which they are).

Even if the ANSI standards were somehow to apply to a Harry-Homeowner-tree-removal job, the court ruled, “Ohio courts have held that summary judgment may be granted in cases where building code violations are open and obvious ‘because the open-and-obvious nature of the defect obviates the premises owner’s duty to warn.” The hazard of climbing on the tree limb in a tree with dead branches was open and obvious.

Finally, Tony’s participation on the job did not make him liable to Dick. One who engages the services of an independent contractor, and who actually participates in the job operation performed by such contractor and thereby fails to eliminate a hazard which he, in the exercise of ordinary care, could have eliminated, can be held responsible for the injury or death of an employee of the independent contractor. Here, testimony of the parties indicated that if anyone directed the activities that day, it would have been Dick, who was the individual experienced in cutting down trees and using chain saws. The record was devoid of any indication that Tony directed Dick to do anything on the day of the accident, or even that Tony had any prior experience with chain saws or with cutting down trees.

Dick “directed the activity which resulted in the injury or gave or denied permission for the critical acts that led to the… injury.” The cause of Dick’s injury, in his own words, was that the limb on which he stood fell, taking him down with it, because the limb “was rotted.” Tony had no role in the injury, and thus no liability.

– Tom Root

TNLBGray

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