IF A TREE FALLS …
This Louisiana case is another in our continuing series of “someone got badly hurt, so obviously, someone else has gotta pay.”
Today, a couple lived in a house leased from their physician daughter (so we already know who in this saga has money). The couple wanted to have a dangerously leaning tree taken down. They hired a landscaper, who in turn hired someone who represented himself as a guy who could take down a tree.
Gunnery Sergeant Daniel Daly, one of only two men to ever win two Medals of Honor, exhorted his fellow Marines to charge the Germans at the World War I Battle of Belleau Wood, shouting, “C’mon! Do you want to live forever?” A brave sentiment during battle, but a pretty foolhardy one when removing trees.
The tree cutter had all the safety equipment, but he didn’t use it. After all, it was just a tree. Safety is for wimps! After all, do you want to live forever?
The tree cutter obviously didn’t care to do so. He directed the landscaper, who was helping him, to harness the tree to his pickup truck. During their Keystone Cops antics, the landscaper’s truck pulled down part of the tree. Sadly, the tree cutter was attached to it at the time.
The tree cutter sued the landowner and the tenants. But of course! He argued that the doctor-daughter and her parents (and, of course, their insurance company) should pay because they didn’t warn him. Warn him to do what? To use his safety equipment? That the law of gravity was in force? That God may protect fools, but not for very long?
Fortunately, common sense prevailed …
Frazier v. Bryant, 954 So.2d 349 (La.App. 2 Cir. Apr. 4, 2007). The Bryants lived on a property owned by their daughter, Dr. Garrett, based on a verbal lease between them. Mr. Bryant wanted to have a large tree removed because it was leaning toward the house and several of the limbs of the tree were near the roof. He contacted Ron’s Lawn Care to take down the tree.
Mr. Hughes, the owner of Ron’s, hired Mr. Frazier, who had previously approached Mr. Hughes offering his services in tree removal. Mr. Frazier climbed up to the top of the tree and started to cut away the top limbs. He wore a climbing harness and was attached to a climbing rope that was strung over the top of the tree, but he hadn’t connected a lanyard rope that would have secured him to the tree. Mr. Hughes was using his pickup truck to direct portions of the tree away from the house. At some point, Mr. Hughes pulled with his pickup truck and the entire top of the tree came down. Mr. Frazier, still attached to the climbing rope, came down with the tree. He was badly injured.
Mr. Frazier sued Ron’s Lawn Care, the Bryants and Dr. Garrett for negligence. All three filed for summary judgment, and the trial court granted it. Plaintiff Frazier appealed.
Tree vs. truck – who wins? Certainly not the people taking down the tree …
Held: The tree cutter falls again. Under Louisiana law, most negligence cases are resolved by employing a duty/risk analysis with elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injures (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Here, the Court said, Mr. Hughes was pulling on the tree because he was told to do so by plaintiff Frazier. No other defendant exercised such control over the operation as to be liable for the accident.
Mr. Frazier argued that the Bryants were liable for failing to warn him of the defective condition of the tree. The Court said that the owner or custodian of a thing is liable for damage only upon a showing that (1) he or she knew or should have known of the defect which caused the damage, (2) that he or she knew or should have known that the damage could have been prevented by the exercise of reasonable care, and (3) that he or she failed to exercise such reasonable care. Here, the Court said, no evidence showed that any defect in the tree existed. At most, the evidence suggested that the tree was leaning due to erosion at the base of the tree, the Court held, and nothing indicates that this condition caused Mr. Frazier’s fall.
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 