Case of the Day – Friday, November 14, 2025

Posted on November 14, 2025 by TLRoot tagged.

I THINK, THEREFORE I OWN

My wonderful and sainted Latin teacher, the late Emily Bernges of Sturgis, Michigan, would have shaken her head in dismay, correcting me that I should say, Cogito, ergo sum.

Non hoc tempus, Mrs. Bernges. That was that Descartes fellow who said that. Today’s case departs from his admittedly excellent philosophical proposition, being more in the vein of, “I think it’s mine. Therefore, it is mine.” The facts are kind of pedestrian: two rectangular home lots, with the owner of one, Dolfo Otto, suffering the real estate version of “mission creep.” His mowing, trimming and planting expanded incrementally until what he thought was the boundary between the parcels had wandered several feet into the neighbors’ yard. Being a green thumb kind of guy, Dolfo planted a row of maples to mark what he thought was the property line. The trees served a boundary purpose, and Dolfo liked how they looked.

The neighbors changed over the years, and whatever institutional knowledge the earlier ones may have possessed about the original property line was lost. So it was well over 20 years after the Cornells, the latest owners of the place next door, had a survey done. They discovered that the strip with the maple trees did not belong to Dolfo at all. Dolfo, surprised at the situation, dug in his heels, got a lawyer and sued to quiet title in his favor because he had adversely possessed the land all those years.

Belatedly trying to assert dominion over land he never knew he owned, neighbor Richard Cornell cut down Dolfo’s maples. This unwise escalation of the existing tension only threw legal gasoline on the fire. Courtroom hijinks ensued.

What I found particularly interesting about this case was that while mowing and general upkeep of a piece of property generally is insufficient to establish possession, the Court found that Dolfo’s planting and nurturing four maple trees was more than enough to establish his possession of property to which he held no title. I guess that when your trees set down roots, so do you.

Otto v. Cornell, 119 Wis.2d 4 (Wis.App. 1984). Dolfo Otto owned a 50’ x 150’ lot next to a similar lot owned by Richard and Dorothy Cornell. Dolfo Otto had maintained a fence on what he believed was the southern boundary of his lot for many years prior to 1945. That year, he removed the fence and planted four maple trees to mark the boundary. Since then, Dolfo mowed and maintained the lawn around the trees and to the north.

The house next door was rented to the Wilsons in 1949. Their driveway was located close to the maple trees. When Mrs. Wilson hit one of the trees with her car and destroyed it in 1951, Dolfo replaced it.

The Cornells bought the next-door lot in 1963. After the land was surveyed 16 years later, the Cornells first realized that the true lot line between their lot and Otto’s lay some feet north of the line on which Dolfo had planted the trees. Dolfo refused to accept the survey results, and in 1980, he sued to establish his title to the property up to the tree line. A few months later, Richard Cornell cut down Dolfo’s four maple trees.

The trial court found that Dolfo had acquired the strip of land on which his maple trees had stood by adverse possession and awarded him damages for the destroyed trees.

The Cornells appealed.

Held: Dolfo had title to the disputed property and was entitled to punitive damages.

Dolfo based his claim to the disputed property on Wisconsin Ch. 893, Stats., which allows a person who has had uninterrupted adverse possession of land for 20 years to bring an action to establish title. Adverse possession under this section requires enclosure, cultivation, or improvement of the land and physical possession that is hostile, open and notorious, exclusive and continuous for the statutory period.

“Hostility” means only that the possessor, in this case, Dolfo, claimed an exclusive right to the land possessed. The parties’ subjective intent is irrelevant to the determination of an adverse possession claim.

The requirement of continuity is satisfied by activities that are appropriate to seasonal uses, needs and limitations, considering the land’s location and adaptability to such use. The true owner’s casual reentry on the property does not defeat the continuity or exclusivity of an adverse claimant’s possession unless it is a substantial and material interruption and a reentry for the purpose of dispossessing the adverse occupant.

An adverse possession action can often devolve into a pissing contest …

Here, the Court found that the trial judge’s findings were sufficient to support its conclusion that Dolfo established title by adverse possession. The Court found he had planted ornamental trees in 1945 and 1951 to establish the southern boundary of his lot; that at all times he claimed, maintained, and occupied the land around the trees; and that he posted a thermometer on one of the trees. The Court found that the Cornells first became aware of where the boundary was located when the property was surveyed in 1979, and that Dorothy Cornell knew for 17 years before that Dolfo claimed the disputed property. The evidence showed that the Cornells never used the disputed property.

The Court of Appeals said Dolfo’s acts in planting the ornamental trees more than 25 years before the lawsuit and in maintaining the land around the trees since then constituted possession of the land by usual improvement, in the same manner that a true owner might have manifested possession of land of this character and location. Regardless of his subjective intent in occupying the land – in this case, the belief that he owned the property – Dolfo’s possession was legally hostile, open, and notorious.

As well, his possession was continuous and exclusive. The Cornells never tried to dispossess Dolfo until after he sued and his adverse possession had been established. Although the Cornells testified at trial that they had used the property and were not aware that Dolfo claimed it until the lawsuit, they also admitted that they gave conflicting answers about the extent of their claim and their knowledge of Dolfo’s claim in their pretrial depositions. Apparently, the Cornells raked leaves and their children played on the disputed strip from time to time, but these uses were casual, the Court said. It was unnecessary for Dolfo to be belligerent if his neighbors happened to step across a particular line.

The trial court awarded Dolfo the replacement cost of maple trees. The Cornells argued on appeal that damages could only be assessed based on the diminished value of Dolfo’s land as a result of the destruction of the trees.

The evidence indicated that the trees were planted in a row on a small residential lot. Dolfo maintained the lawn around the trees, and when one was damaged, he replaced it. The trees could be ornamental even though they marked a boundary. Had his sole purpose been to mark a boundary, Dolfo could have replaced the fence that existed before the trees, or he could have installed metal stakes or monuments.

The Court cited a Wisconsin Supreme Court decision in which the High Court said, “An owner of real estate has a right to enjoy it according to his own taste and wishes… yet the arrangement… of buildings and trees selected by him might be no considerable enhancement of the sale value of the premises… and the disturbance of that arrangement, therefore, might not impair the general market value… While the owner may be deprived of something valuable to him… he might be wholly unable to prove any considerable damages merely in the form of the depreciation of the market value of the land. The owner of property has a right to hold it for his own use as well as to hold it for sale…”

The same applies here. The diminished land value rule is not exclusive. Rather, Dolfo is entitled to have his land returned to the configuration that suited him.

The trial court determined that the property line went through the trees. The Cornells argued that they were entitled to credit for half the value of the tree, but the Court rejected the claim. “Regardless of where the trial court set the boundary after the trees were cut down,” the Court of Appeals said, Dolfo “possessed both the trees and the land around the trees since the time he planted them.” The trees belonged to Dolfo, and he was entitled to all the damage done to them.

– Tom Root

Case of the Day – Thursday, November 13, 2025

Posted on November 13, 2025 by TLRoot tagged.

FATHER (AND MOTHER) MAY NOT KNOW BEST

I have written before about preprinted and non-negotiable waivers of liability. You know…that dense print on your coat check receipt, or 6-point type on the form you sign at the ski resort, which says something about whatever happens to you isn’t their fault.

Whether the waiver is enforceable is a debatable proposition, with different answers depending on the facts of the case. But what about a waiver form your child brings home, something requiring your John Hancock so that he or she can go with friends to ski or rollerblade or (as in today’s case) bounce on a trampoline?

Even if you – a rational, thoughtful and risk-averse adult – can sign away your right to seek compensation from others whose negligence or worse injures you, can you give away your kid’s right to do so?

The Kentucky Supreme Court, in a decision that is a little creepy in its “big brother” approach to your right to be parent to your child, said that you cannot, at least where the waiver is sought by some rapacious commercial enterprise. And face it, all of the best fun (and greatest risk) is offered by such enterprises: amusement parks, scuba diving schools, zipline operators, skydiving entities…

The Kentucky Supreme Court blithely assumes that commercial defendants can simply buy insurance without pricing their services out of the marketplace or taming the adventures they offer.

E.M. v. House of Boom Ky., LLC, 575 S.W.3d 656 (Supreme Ct. Kentucky, 2019). House of Boom is a for-profit trampoline park, a collection of trampoline and acrobatic stunt attractions. Kathy Miller purchased tickets for her 11-year-old daughter, E.M., to go play at House of Boom.

Before purchasing a ticket, House of Boom required the purchaser to check a box indicating that the purchaser had read the waiver of liability, which waives claims arising from “negligent acts and/or omissions committed by HOUSE OF BOOM or any EQUIPMENT SUPPLIERS, whether the action arises out of any damage, loss, personal injury, or death to me or my spouse, minor child(ren)/ward(s), while participating in or as a result of participating in any of the ACTIVITIES in or about the premises.”

The waiver includes language that, if enforceable, would release all claims by (1) the individual who checked the box, (2) her spouse, (3) her minor child, or (4) her ward against House of Boom. Once Kathy Miller checked the box, E.M. used the trampolines at House of Boom, and was injured when another girl jumped off a three-foot ledge onto E.M’s ankle, breaking it.

Kathy sued House of Boom on behalf of her daughter in Federal district court. House of Boom, relying on questions over Kathy’s legal power to waive her daughter’s right to sue, concluded that House of Boom’s motion for summary judgment involved a novel issue of state law and used a procedure by which a federal court may certify such a question to the state supreme court for resolution.

Held: A pre-injury liability waiver signed by a parent on behalf of a minor child was unenforceable because under common law, absent special circumstances, a parent had no authority to enter into contracts on a child’s behalf.

Pre-injury release waivers are not automatically invalid in Kentucky, but they are generally disfavored and are strictly construed against the parties relying on them. The courts analyze these agreements for violations of public policy.

The liberty interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by law. Although parents have a fundamental liberty interest in the rearing of one’s child, this right is not absolute, and the State may step in as parens patraie to protect the child’s best interests of the child. The question of whether a parent may release a minor’s future tort claims implicates wider public policy concerns, the Court said, as well as the parens patriae duty to protect the best interests of children.

Section 405.020 of the Kentucky Revised Statutes provides that the father and mother shall have the joint custody, nurture, and education of their minor children. However, this grant of custody and parents’ right to raise their child, choose the child’s educational path, and make healthcare decisions on a child’s behalf has never abrogated the traditional common law view that parents have no authority to enter into contracts on behalf of their child when dealing with a child’s property rights, prior to being appointed guardian by a district court.

Even when acting as next friend in a lawsuit, a minor’s parent has no right to compromise or settle a minor’s claim without court approval or collect the proceeds of a minor’s claim.

As litigation restrictions upon parents have remained a vital piece of the Commonwealth’s civil practice and procedure, the Court refused to recognize any parental right to quash their child’s potential tort claim.

Children deserve as much protection from the improvident compromise of their rights before an injury occurs as the common law and statutory schemes afford them after the injury. The law generally treats pre-injury releases or indemnity provisions with greater suspicion than post-injury releases. Such an exculpatory clause that relieves a party from future liability, the Court held, may remove an important incentive to act with reasonable care.

Such clauses are also routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance. The party demanding adherence to an exculpatory clause simply evades the necessity of liability coverage and then shifts the full burden of risk of harm to the other party. Compromise of an existing claim, on the other hand, relates to negligence that has already taken place and is subject to measurable damages. Those after-the-fact releases involve actual negotiations concerning ascertained rights and liabilities.

Thus, if anything, the policies relating to restrictions on a parent’s right to compromise an existing claim apply with even greater force in the preinjury, exculpatory clause scenario. The public policy reasons for protecting a child’s civil claim pre-injury are no less present than they are post-injury.

Besides, the Court observed, a commercial entity has the ability to purchase insurance and spread the cost over its customer base. It also has the ability to train its employees and inspect the business for unsafe conditions. A child has no similar ability to protect himself or herself from the negligence of others within the confines of a commercial establishment. If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed.

– Tom Root

Case of the Day – Wednesday, November 12, 2025

Posted on November 12, 2025 by TLRoot tagged.

THE LIMITS OF CAUSATION

We liked our lunch at Jimmy John’s and didn’t discover that we were really victims – not patrons – until more than a year later.

We finish five days of considering independent contractors versus employees…

About a decade ago, we grabbed a Jimmy John’s meal on the way to a high school football game. While paying, I noted a stack of official-looking notices, informing me that my wife and I had been grievously injured a year and a half ago before when we ate a Jimmy John’s sub sandwich in Winston-Salem, North Carolina.

At the time, the sub tasted pretty good to some hungry travelers, and we seem to recall that we left the place feeling like we had gotten our money’s worth. Boy, were we ever wrong! It turns out that we may have gotten a sandwich that may have been advertised as having alfalfa sprouts but did not.

Oh, the humanity!

We don’t really remember what sandwich we ate, and if alfalfa sprouts were omitted (and if that had been important to us), we imagine we would have noticed. No matter, we are members of a class of consumers harmed by high-handed chicanery, alfalfa sprout deprivation that shocks the conscience! Admittedly, our damages would never make us lead plaintiffs in the post-Spokeo v. Robins world. Fortunately, we’re not here to discuss that decision (because we’re not entirely sure we understand it).

Likewise, there’s much about the alfalfa sprout class action lawsuit against Jimmy John’s that we don’t understand. According to the information we’ve gleaned from the settlement documents, we’re maybe going to get a coupon for a free pickle, or perhaps a bag of chips. The lead plaintiff gets $5,000 for her trouble, and her lawyers get around $400,000. Regardless of the amount of damages that may some day flow our way to heal our psyches, we were intrigued. It made us wonder about causation and damages. And, of course, about trees…

America's right to alfalfa sprouts – vindicated by the majesty of the law.

America’s right to alfalfa sprouts – vindicated by the majesty of the nation’s legal system.

Back in the early days of the last decade, Georgia Power was building a new transmission line through some swampland. The utility mapped out an area in which, due to environmental considerations, trees had to be cut by hand instead of a machine. The area was larger than the minimum required by law. While an employee of one of its contractors was cutting down trees, a branch fell from behind him and paralyzed him.

So what caused the injury? The fact that the worker didn’t watch the trajectory of what he was cutting? Just bad luck? His employer’s lousy safety program? Maybe a sproutless sandwich from Jimmy John’s? Or was it the fact – as Rayburn argued at trial – that Georgia Power insisted more trees be cut by hand than the law mandated? Or maybe it was the fault of the consumer, whose need for more electricity caused the building of the power line? Or maybe mainstream religion, for rejecting an Amish lifestyle that would eschew electricity?

You get the idea… when someone is badly hurt (and often when they’re not hurt at all), it’s good sport to look around for someone to blame, someone with deep pockets. But here, the Court refused to stretch the limits of causation unreasonably. While not conceding that tree cutting was inherently dangerous, the Court nevertheless stated, in essence, that the Plaintiff was a consenting adult and had freely agreed to assume the risks.

The lesson, kiddies, is this (and we don’t care what the slick lawyer’s ad on daytime TV says): Someone else doesn’t have to pay every time you get hurt. Here, have a pickle …

Rayburn v. Georgia Power Co., 284 Ga.App. 131, 643 S.E.2d 385 (Ct.App. Ga., 2007). Georgia Power set out to build a new transmission line. The coastal plain on which the power line was being built included wetlands and rivers. Because of the Army Corps of Engineers’ concerns with the destruction of wetlands, Georgia Power maintained a policy of clearing wetland buffers of trees by hand rather than with machines, which tended to tear up root mats and the ground. As well, the Georgia Erosion and Sedimentation Act required at least a 25-foot buffer to be cleared by hand on each side of a warm water stream, and at least a 50-foot buffer for trout streams, within which vegetation must be cleared by hand. In one case, a Georgia Power environmental supervisor specified a 50-foot buffer because the area was especially sensitive, but his assistant, an environmental analyst, marked in her notebook that they put 100-foot buffers on the stream. She set out flags showing the buffers. At some point, Georgia Power staff moved the wetland buffer to the edge of the right of way.

Caffrey Construction won a contract to clear timber, having taken into account that several areas in the project had to be hand-cleared. While working in a buffer zone, Rayburn was struck from behind by a limb from another tree. Rayburn sued Georgia Power, contending that the company’s negligence caused his injury. The trial court granted summary judgment for Georgia Power, holding that Rayburn’s injury was “the product of a normal risk faced by persons employed to cut down trees.” The court held that the decision to extend the buffer did not cause Rayburn’s injury, the cause of which was either his decision to cut down the tree in the circumstances presented or else an unforeseen occurrence for which no one was responsible. The court also declined to find that tree-cutting is an “inherently dangerous” occupation or that Georgia Power directed the time and manner of Caffrey’s work. Rayburn appealed.

Held: Georgia Power was not responsible for Rayburn’s injury. The Court noted that the employer of an independent contractor owes the contractor’s employees the duty not to imperil their lives through the employer’s own affirmative acts of negligence. However, the employer is under no duty to take affirmative steps to guard or protect the contractor’s employees against the consequences of the contractor’s negligence or to provide for their safety. This is especially true where a plaintiff has assumed the risk. An injured party has assumed the risk where he or she (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself or herself to those risks.

Here, Rayburn argued that Georgia Power owed him a legal duty not to expose him to unreasonable risks of harm by requiring hand-clearing in an area that could have been more safely cleared by machine and that it breached this duty. He submitted evidence that clearing timber by hand is more dangerous than clearing it by machine. While state regulations only required a 25-foot buffer to be hand-cleared on each side of a creek, Georgia Power marked a buffer line more than 100 feet from the stream. Rayburn complained that, despite the option of a safer means of tree cutting, Georgia Power “directed that the work be performed by inherently dangerous methods in extremely hazardous conditions contrary to accepted construction industry standards.” Therefore, he argued, Georgia Power’s decision to hand-clear this section of property regardless of the danger to Caffrey’s employees should make it liable for his injury.

The Court held that, notwithstanding all of this, Georgia Power could not have appreciated the dangers better than he did. The Court said that exposing someone to harm generates liability only when the person exposed does not appreciate the harm or is helpless to avoid it, which was not the case here. While Rayburn’s experts concluded that the working conditions were “abhorrent,” the Court said, none of the witnesses said that the conditions were out of the ordinary for that part of the state. If the contractor’s employees can ascertain the hazard known to the entity hiring the contractor, the contractor need not warn the employees of the hazard. Rayburn argued that, even if he knew the general risk involved in felling trees with a chainsaw, he did not assume the specific risk that the particular branch that hit him would do so.

Rayburn was hired to cut trees. He had experience cutting trees. He testified that he observed the conditions and would have spoken to his supervisor if he thought they were unsafe. He already knew that cutting trees with a chainsaw was hazardous, and therefore, Georgia Power had no duty to warn him that he could get hurt by doing the job, which presented hazards that he fully understood. He had actual knowledge of the danger associated with the activity and appreciated the risk involved.

Rayburn also argued that OCGA §51-2-5 made Georgia Power liable for Caffrey’s negligence because the work was “inherently dangerous,” and because it controlled and interfered with Caffrey’s method of performing the job. But the Court said the statute only makes an employer liable for the contractor’s negligence, and here, Rayburn has not established that Caffrey’s negligence led to his injury. Even if he had, Rayburn had not shown that Georgia Power retained the right to direct or control the time and manner of clearing the timber. Georgia Power’s on-site supervisor visited the property once or twice a week but did not direct the Caffrey employees on how or when to do their jobs. The Court observed that merely taking steps to see that the contractor carries out his agreement by supervision of the intermediate results obtained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable.

– Tom Root

Veterans Day 2025

Posted on November 11, 2025 by TLRoot tagged.

Case of the day – Monday, November 10, 2025

Posted on November 10, 2025 by TLRoot tagged.

GOOD DRAFTING DOESN’T ALWAYS PREVENT LITIGATION

A little more today on independent contractors: I have often noted that inexact lawyering can lead to needless litigation. That’s not to say that good draftsmanship will necessarily avoid litigation, but — as we see in today’s case — it always helps.

Dogger got the logs - Worley was left with the stumps

Dugger got the logs – Worley was left with the stumps

Mrs. Dugger hired a Kentucky-certified master logger, Tommy Thomas, to log her land. She signed a contract with him which specified, among other things, that ol’ Tom-Tom was an independent contractor. Well, master logger or not, Tommy Boy wasn’t a master listener. Although Mrs. Dugger told him she didn’t own the land across the crick and he shouldn’t log it.

Of course, he logged it anyway. Predictably, the woman who owned the land on the other side of the watercourse sued, naming both Tommy T. and Mrs. Dugger as defendants.

Mrs. Dugger’s lawyer had her dismissed from the lawsuit on summary judgment, because Kentucky law was clear that an owner wasn’t liable for the errors of an independent contractor, and Tommy Thomas was clearly an independent contractor. The written agreement between the two of them was a great help in establishing this, as well as proving that Mrs. Dugger had told her contractor where her property boundaries lay.

The appeals court agreed, holding that Thomas’s master logger certification meant he should have known better. The contract helped demonstrate that the parties consistently intended for him to be an independent contractor, and he, in fact, controlled the manner of the work and how it was accomplished. Mrs. Dugger might have been liable anyway if the cutting was “work involving a special danger.” But in Kentucky, the Court said, it’s not.

She had a good lawyer – but it didn’t keep her out of the courtroom

Worley v. Dugger, Not Reported in S.W.3d, 2007 WL 4373120 (Ky.App., Dec. 14, 2007). Mrs. Dugger entered into a logging contract in May 2003 with Tommy Thomas to cut timber from part of her property. During Thomas’ cutting, he crossed onto Worley’s land and took trees valued at over $1,300. Worley sued Thomas and Dugger, seeking damages for the wrongful taking of timber pursuant to KRS § 364.130.

Just prior to trial, Mrs. Dugger won summary judgment on the basis that Thomas was acting as an independent contractor at the time he wrongfully took timber from Worley’s property. Later, a default judgment was entered against Thomas on the issue of liability. Worley moved to vacate the summary judgment and reinstate Mrs. Dugger in the lawsuit. When the court refused to vacate, Worley appealed.

Held: Summary judgment in favor of Mrs. Dugger was appropriate. The trial court found Thomas was acting as an independent contractor at the time when he wrongfully took timber from the plaintiff. Thomas was told not to log beyond the borders of Dugger’s property, something he admitted under oath. What’s more, Mrs. Dugger was not vicariously liable for Thomas’s wrongful timber harvest because she failed to adequately instruct him. Although landowners had been found liable in other cases where independent contractors had cut trees from neighboring land, that was because the landowners had allowed their contractors to cut trees without knowing the exact location of the boundary lines.

Here, the Court said, Mrs. Dugger explicitly instructed Thomas to not exceed the boundaries of her property beyond the creek. Thomas, on his own initiative and contrary to Mrs. Dugger’s instructions, crossed the creek onto Worley’s land. Thomas was a “Kentucky Certified Master Logger,” and the Court held that this certification meant that Thomas should have been familiar with his duty to observe boundary lines to avoid the possibility of liability.

Lucky thing Mrs. Dugger had it in writing …

Plus, Thomas’s contract with Mrs. Dugger clearly identified him as a “contractor.” In Kentucky, as a general rule, employers are not vicariously liable for the acts of independent contractors. The right to control the work and the methods of its performance is determinative on the question of whether one is a servant or an independent contractor. If the employer retains the right to control the work and the manner in which it is done, those doing the work are servants. On the other hand, if an employee has the right to control the manner of work and the right to determine the means by which results are accomplished, he is deemed an independent contractor and the employer is not responsible for his negligence.

The exception to the general rule is that if the work to be performed is either a nuisance or is inherently dangerous, the employer will not be absolved from liability. The Court ruled that tree cutting is not “work involving a special danger” as contemplated by the law. Here, the Court held, Thomas was an independent contractor because he controlled the manner of the timber cutting as well as the means he would use to complete the job.

Under the facts of this case, the work of cutting timber upon Mrs. Dugger’s land was neither a nuisance nor inherently dangerous. Thus, Mrs. Dugger could not be held liable for Thomas’s negligent work.

– Tom Root

Case of the Day – Friday, November 7, 2025

Posted on November 7, 2025 by TLRoot tagged.

ODDJOB

We suspect that imagining a world without frivolous lawsuits would be an impossible dream.

We suspect neighborhood grocer Jerald Walker won’t try to save a few bucks like this anymore. When he had odd jobs to be done around the store, he generally would offer the work to casual laborer Gene Moser and his sometimes-sidekick Paul McCubbin. Gene and Paul (think “Stan and Ollie,” if you like), would paint walls, repair doors, rake leaves or perform other menial tasks, and Jerald would pay them an agreed-upon price for the work.

As lawyers like to say, there came a time when Jerald needed some trees trimmed. He called Gene and offered $30.00 for the project. Gene, apparently daunted by the scope of work to be performed, recruited his swamper Paul, agreeing to split the fee 50-50. Instead, the only thing that was split was Paul’s noggin.

Gene and Paul finally showed up to do the job, and Jerald provided them with the saws they needed. They had only trimmed a couple of branches when a limb being cut by Gene fell and hit Paul.

Would Pancho sue the Cisco Kid? Tonto file against the Lone Ranger? Sancho allege a tort against Don Quixote? Such weighty questions may never be answered, but we do know that Paul would sue Gene. And he did.

For good measure, Paul McCubbin also went after Jerald Walker, arguing that he deserved workers’ compensation because he had been the store’s employee and, in the alternative, contending that the tree-trimming work was inherently dangerous. An “inherently dangerous” occupation provides an exception to the rule that an independent contractor cannot collect against a hiring party.

The Workers’ Compensation hearing officer ruled that Paul McCubbin was not an employee of the store, a position agreed with by the trial. For good measure, the trial court also held that tree trimming was not an inherently dangerous occupation. Paul McCubbin’s guardian – necessary because his head injuries were severe and permanent – had more luck in the Court of Appeals. That tribunal ruled that material questions of fact had been raised regarding both whether McCubbin was an employee and whether the work he was hired to do was inherently dangerous. The parties appealed to the Kansas Supreme Court.

The Supreme Court ruled that nothing in the record permitted a holding that McCubbin was Jerald Walker’s employee. The fact that Walker provided the tools and pointed out the trees to be trimmed was not determinative, because the price was set for a complete job, Walker had no control over when the job was done or how it was done, or even over how McCubbin and Moser would split the payment for the work. Thus, Paul McCubbin was the grocery store’s independent contractor, and Walker was not liable for the accident.

Sure you do … but does that make you a tree trimmer?

What’s more, the Court said, no work is “inherently dangerous” if it can be performed safely. Tree trimming can be done safely and without accident (although maybe not by McCubbin and Moser). Thus, the “inherently dangerous” exception to nonliability did not apply here.

McCubbin v. Walker, 256 Kan. 276, 886 P.2d 790 (S.Ct. Kan. 1994). Jerald and Carol Walker own Valley Market, a small, neighborhood grocery store in Kansas City, Kansas. Jerald often hired Gene Moser and Paul McCubbin, two local men, to perform odd jobs at the market, such as painting, light carpentry, and other general maintenance duties. Walker viewed the two as ‘contract labor’ rather than as traditional employees. Walker would decide on whatever job he needed to be done and then negotiate with them about the cost of performance.

In April 1989, Walker contacted Moser about trimming dead tree branches from some trees in front of the market. Moser agreed to do the job for $30.00. Moser contacted McCubbin to help him trim the trees, and the two agreed to split the money, with Moser providing all of the equipment. The two trimmed two branches from one tree and had moved onto a second tree, when a trimmed branch struck McCubbin as it fell, causing him severe and permanent injuries.

McCubbin’s guardian filed a workers’ compensation claim, arguing that McCubbin was Walker’s employee. The Worker’s Compensation administrative law judge held that the parties did not come under the Kansas Workers’ Compensation Act, as Walker did not meet the statutory definition of an employer and McCubbin did not meet the statutory definition of an employee. The ALJ found instead that both Moser and McCubbin were independent contractors.

McCubbin’s guardian next sued Walker and Moser, alleging that McCubbin’s injuries were the direct and proximate result of their negligence. Walker moved for summary judgment, arguing that McCubbin was an independent contractor and that tree trimming was not an inherently dangerous activity that would require Walker to equip, supervise, or warn McCubbin of the obvious dangers involved in the trimming of trees. The trial court held that even assuming the greatest possible duty that could be owed by Walker to McCubbin, there was no breach. The court found that McCubbin was an independent contractor, and his injuries were caused by his own and Moser’s actions, not by a condition of the premises.

The Court of Appeals reversed, holding that whether McCubbin was an employee or an independent contractor, and whether tree trimming was an inherently dangerous activity, should be determined by a jury.

Walker appealed to the Kansas Supreme Court.

He performed odd jobs, too … did that make him Auric Goldfinger’s independent contractor?

Held: Moser was an independent contractor, and the work he had undertaken was not inherently dangerous so as to impose any special duty on Walker. The Court observed that an independent contractor is someone who contracts to do certain work according to his or her own methods, without being subject to the control of the employer, except as to the results or product of the work. The single most important factor in determining a worker’s status as an employee or independent contractor, the Court said, is whether the employer controls – or has the right to control – the manner and methods of the worker in doing the particular task. As a general rule, when a person lets out work to another and reserves no control over the work or workers, the relation of contractee and independent contractor exists, and not that of employer and employee, and the contractee is not liable for the negligence or improper execution of the work by the independent contractor.

The Supreme Court agreed that an exception to the general rule of nonliability of an employer for the negligence of an independent contractor is the “inherently dangerous activity” doctrine. Under that doctrine, one who employs an independent contractor to do work involving a special danger to others that the employer knows or has reason to know to be inherent in or normal to the work, or which the employer contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the independent contractor’s failure to take reasonable precautions against such dangers. However, an activity cannot be termed inherently dangerous merely because it may possibly produce injury; instead, the intrinsic danger of the work on which the doctrine is based must result from the performance of the work, and not from the collateral negligence of the contractor.

Here, the Court said, Moser and McCubbin were independent contractors. Walker hired Moser to produce a result and did not recruit McCubbin. Walker did not provide the equipment, and – although he specified which trees he wanted to be trimmed – did not direct how the work was to be performed. Furthermore, payment was based on the completed task and was a single sum regardless of the time and effort expended. Finally, it was relevant that Moser and McCubbin provided general maintenance and odd job services for a number of people, not just Walker.

As for the work itself, the Court held, tree trimming is an everyday activity that can be accomplished safely and, when done so, is an activity in which danger is not inherent in the activity itself. Tree trimming generally does not constitute an inherently dangerous activity.

Thus, McCubbin was not entitled to recover damages from the Walkers.

– Tom Root

Case of the Day – Thursday, November 6, 2025

Posted on November 6, 2025 by TLRoot tagged.

WHY WRITTEN CONTRACTS CONTINUE TO BE SUCH A GOOD IDEA

I’ve preached it until I’m blue in the face. As movie impresario Samuel Goldwyn put it, “a verbal contract isn’t worth the paper it’s written on.” But it seems like a good point with which to start the new year.

In today’s case, landowner Whatley hired a tree cutter to take down two trees in his yard. Whatley knew from nuthin’ about tree cutting, so he told the guy to do it any way he saw fit. Of course, these two, being good ol’ boys, didn’t bother with a written agreement (which could have been as simple as an estimate with some terms printed on the back).

And what kind of terms did they need? Well, maybe one who said that the tree cutter was an independent contractor of Whatley would have been nice. As it turned out, the cutter and his able assistant dropped the first tree without a problem. When they considered the second tree, which stood on a slope hard against the neighbors’ place, the cutter figured he could drop it in one piece safely. Whatley, who (as we said) knew from nuthin’ about tree cutting, said, “If you can do it, do it.”

But the cutters couldn’t do it. The tree toppled onto the Sharmas’ place, breaking trees and smashing their fountain. And here’s where it got messy. The Sharmas, of course, sued the tree cutter. But they sued Whatley, too, arguing that it was his fault as the employer of the cutters.

Some blunders are obvious …

The law is well established that a landowner isn’t responsible for the negligence of an independent contractor, because the independent contractor has full authority to decide how to do the job himself. But without that written agreement, everyone had to pack the courtroom to explain how the relationship was an independent contract and not an employer-employee relationship.

The Sharmas seized on the offhand statement Whatley made about ‘doing it if you can do it, ‘ and tried to conflate it into Whatley guiding the work. The court sorted things out, but a nice written agreement spelling out the relationship probably would kept Whatley out of court to begin with.

Whatley v. Sharma, 291 Ga.App. 228, 661 S.E.2d 590 (Ga. App. 2008). Whatley hired a tree-cutting contractor to remove two trees from his yard for $1,100 to be paid on completion. The oral contract didn’t specify how the trees should be removed. The contractor arrived a week later with a “tree climber,” whom the contractor had hired in case they needed to fell the trees by cutting them into sections (also known as “topping off” the trees) rather than dropping the trees as an entire unit. They felled the first tree in one piece, and based on the tree climber’s recommendation, the contractor informed Whatley that they also intended to cut down the second tree as an entire unit. Whatley responded, “[I]f you can do it, do it.”

But the second tree, located on a hill on Whatley’s property that sloped toward the nearby property line, twisted as it fell and toppled into the Sharmas’ yard, damaging their trees and outdoor fountain. The Sharmas argued that there was no way the second tree could have been cut down in one piece without damaging their property.

The Sharmas sued the contractor, arguing he was negligent in felling the tree as an entire unit rather than “topping off” the tree. The Sharmas also included Whatley as a defendant. Whatley moved for summary judgment, arguing that he was not responsible for the actions of the tree cutter, who was an independent contractor. His motion for summary judgment was denied, and he appealed.

Held: The summary judgment was granted, and Whatley was dismissed from the suit. The Court began with the observation that, under Georgia law, a person who engages an independent contractor is generally not liable for any torts committed by the independent contractor. The reason for the rule is that since the employer has no right of control over the manner in which the work is to be done, it is regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk and administering and distributing it.

The Court said that the true test of whether a person employed is a servant or an independent contractor is whether the employer, under the contract, has the right to direct the time, the manner, the methods, and the means of execution of the work, or whether the contractor in the performance of the work contracted for is free from any control by the employer in the time, manner, and method in the performance of the work.

Here, the Court held, the unrefuted evidence shows that Whatley engaged a professional tree-cutting contractor for a clearly defined job: to remove two trees for a set price. As a homeowner inexperienced in such matters, Whatley provided no equipment or tools for the job and gave no instructions on how to take down the trees, but rather (in the words of the contractor) gave him “freelance” to cut down the trees as he saw best. The contractor and his “tree climber” made the decision to cut down the second tree as an entire unit, based on the contractor’s belief that he could cause the tree to fall into Whatley’s yard alone.

The Sharmas argued that a single conversation between the contractor and Whatley showed that Whatley controlled the contractor’s actions. They claimed that Whatley’s statement, “if you can do it, do it,” in response to the contractor’s decision to take the tree down as an entire unit showed that Whatley was controlling the contractor’s actions. But the Court said this response merely proved that the contractor was free to cut down the tree as he saw fit: “Whatley was expanding, not contracting, the options available to the contractor to remove the tree, to whom was committed the discretion as to the final decision of the method of removal. At most, this was a suggestion or recommendation, and that is not enough….”

The Sharmas also contended that an exception to the “independent contractor” rule places liability on Whatley, because “[a]n employer is liable for the negligence of a contractor … [w]hen the work is wrongful in itself….” The Sharmas maintained that the felling of the second tree in one piece so close to their yard necessarily required trespass onto their yard and therefore was wrongful in itself. However, the Court said, the competent evidence showed that Whatley never told the contractor he could go onto the Sharmas’ property, and that the contractor believed he could fell the tree without entering their yard. Anyway, a landowner’s hiring someone to cut down a tree from his land is not wrongful in itself, even though the contractor ends up trespassing onto a neighbor’s yard.

– Tom Root