Case of the Day – Thursday, October 24, 2019

STUPID LAWSUITS, TREE-TRIMMING DIVISION

The Internet, repository of wisdom that it is, features several videos of people leaning a ladder against a tree branch, climbing the ladder, and then cutting off the branch against which the ladder was leaning.

It is this kind of advance planning (along with every cellphone serving double duty as a video camera) that assures that America’s Funniest Videos will never run out of new material.

The Keystone Cops could not have done it better than the mook named Mook in today’s case. After being told not to trim his friend’s tree, he does it anyway, with a Rube Goldberg ladder, wearing dress shoes and sawing off the branch against which his latter was leaning. Later, he told the paramedics he had no idea what had happened. That’s not surprising… it appears that his brain wasn’t functioning well before the accident happened.

Kun Mook (Kun being his last name) did, however, have the presence of mind to hire a lawyer who was unafraid to bring such a nothingburger of a case. And, amazingly enough, it sort of paid off. Mook sued the landowner, Young Rok Lee, and his minister, Pastor Jang (who was a confederate in the tree-trimming misadventure). The Pastor had insurance, which paid the policy limit of $100,000 as a settlement, before Rok walked away with the win.

So who was the real mook, Mook or the lawyer who advised the insurance company to part with 100-large?

Kun Mook Lee v. Young Rok Lee, Case No. 2-18-0923 (Ct.App. Ill., Sept. 3, 2019), 2019 IL App (2d) 180923; 2019 Ill.App. LEXIS 732. Kun Mook and Young Rok were members of the same church, pastored by Rev. Jang. One day, Kun Mook and Pastor Jang appeared at Young Rok’s house, despite the fact Rok had told them not to appear. Rok did not provide, maintain, or otherwise supply any of the equipment used in the subsequent tree trimming efforts.

Upon looking at the tree limb, Mook said that the work should be left to professionals because the tree limb was too large and too high and the work would be dangerous. Not taking his own good advice, Mook and Pastor Jang unloaded their and attached two ladders with wire in order to reach the needed height. Rok, who had been mowing his lawn in back, came to the front yard and saw what Pastor Jang and Mook were up to, he immediately told the men to stop their efforts, because it was too high and too dangerous. The two men ignored Rok and continued to try to cut the limb off the tree. Rok eventually gave in, and assisted them in their efforts.

Mook thought that the tree limb might damage the roof when it fell after being cut, so Rok tied one end of a rope around the limb being cut and the other end to another limb. The wired-together ladders were placed against limb to be cut. Mook volunteered to climb the ladders to a height of 25 feet while wearing dress shoes and carrying an electric chainsaw. He sawed through the limb with predictable effect. The limb swung free the ladder fell, and Mook was seriously injured.

Mook sued Rok and Pastor Jang for negligence, arguing that Rok failed to provide appropriate tools, safe instruction, a safe place to perform the work, and appropriate safety equipment, and failed to adequately supervise the work and secure the debris. Mook then filed a motion for a good-faith finding, noting that Pastor Jang had insurance coverage for the incident under his homeowner’s insurance policy and that the insurance company had tendered the limits of Pastor Jang’s policy, $100,000, to Mook. The trial court confirmed settlement between Mook and Pastor Jang.

Rok stood as firm as his granite namesake, arguing Mook was more than 50% comparatively negligent and that, even if he had not been, Rok was not liable under the open-and-obvious rule. Specifically, Rok alleged that, at the time Mook fell, he had a duty to exercise ordinary care for his own safety, including the duty to avoid open-and-obvious dangers. Despite this, Rok argued, Mook “breached his duty by carelessly and negligently failing to appreciate and avoid a danger so open and obvious, specifically, two ladders affixed together reaching considerable heights leaned against a tree limb to be cut with an electric chainsaw, that any person would reasonably be expected to see it.”

Held: Mook would collect nothing from Rok.

A plaintiff alleging negligence must show that the defendant owed a duty to the plaintiff, that the duty was breached, and that the breach proximately caused the injuries that the plaintiff sustained. Relationship-induced duty can be inferred if the plaintiff can show that the injury is reasonable foreseeable, the injury is likely, the burden on the defendant of guarding the plaintiff against the injury is slight, and the consequences of placing that burden on the defendant.

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, the Court ruled, if but he knows or should know of the condition and should realize that it involves an unreasonable risk of harm to his invitees, and should expect that they either will not realize the danger or will fail to protect themselves against it. If he knows that or reasonably should be expected to know that, and he yet fails to exercise reasonable care to protect them against the danger, he is liable.

However, a possessor of land is not liable to his invitees for physical harm they suffer due to any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. This is known as the “open-and-obvious” rule.

Here, the Court said, Rok, as a landowner, has a general duty to protect an invitee like Mook, his invitee, from dangerous conditions on his property. Nevertheless, the open-and-obvious rule applies, providing an exception to that duty. This is so, the Court said, because “we fail to understand how any reasonable person could not have appreciated the open-and-obvious danger of tying two ladders together and placing those ladders against a tree limb 20 to 25 feet above the ground, the very limb that he was attempting to cut down. We also find that no exception to the open-and-obvious rule applies here. Kun Mook was certainly not distracted from noticing that he was climbing the two ladders with a chainsaw in his hand. We also find that the deliberate-encounter exception does not apply. No reasonable person would expect that Kun Mook would climb the ladders and cut down the limb — with the top ladder leaning against the limb to be cut — because the advantage of getting rid of the limb outweighed the incredible risk of doing so.”

Besides, the Court said, Mook’s injuries were not foreseeable. “An injury is not reasonably foreseeable,” the Court ruled, “when it results from freakish, bizarre, or fantastic circumstances… The conduct that Kun Mook engaged in here—tying two ladders together, placing the top ladder against the very limb that was to be cut, climbing the ladders with dress shoes on and a chainsaw in this hand, and, finally, cutting the limb that led to his fall constitute, as a matter of law, freakish, bizarre, and fantastic circumstances.”

After initially looking at the tree limb, the Court observed, Mook said that the work should be left to professionals because the tree limb was too large and too high and the work would be dangerous. “Nevertheless, he marched on in the face of that danger, climbing the ladders while wearing dress shoes and carrying a chainsaw. Then he proceeded to cut the limb, against which the top ladder was leaning. As a matter of law, we find that these actions go well beyond a showing of more than 50% liability.”

– Tom Root

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