Case of the Day – Wednesday, November 10, 2021

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 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 a week of considering independent contractors versus employees…

A couple years 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 notOh, 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 consumer 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 talk about that decision (because we’re not 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 about $400,000. Regardless of the amount of damages that may someday 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 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 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 consumers 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. And while not conceding that tree cutting was inherently dangerous, the Court nevertheless said in essence that the Plaintiff was a consenting adult, and he freely agreed to assume the risks.

pickle141017The 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 Army Corps of Engineers concerns with 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 circumstance 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.

lawgold141017Held: 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 of not imperiling their lives by 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 chain saw, he did not assume the specific risk that the particular branch that hit him would do so.

Chainsawb&w140225Rayburn 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 chain saw 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 in 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

TNLBGray140407

Case of the day – Tuesday, November 9, 2021

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 got 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 clearly was an independent contractor. The written agreement between the two of them was a great help in establishing this, as well as to prove 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 show that the parties always contemplated he would be an independent contractor, and he in fact did control 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

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 get Mrs. Dugger back into 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 admitted under oath. What’s more, Mrs. Dugger was not vicariously liable for Thomas’ wrongful timber harvest because she failed to adequately instruct him. Although landowners had been found liable in another cases where independent contractors had cut trees from neighboring land, that was because the landowners had their contractors cut trees in spite of not knowing where the boundary lines were located.

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

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, are 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’ negligent work.

– Tom Root

TNLBGray

Case of the Day – Monday, November 8, 2021

ODDJOB

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

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 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 both as to whether McCubbin was an employee and whether the work he had been 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?

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, Kansa. 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 which 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?

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 which 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 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

TNLBGray

Case of the Day – Friday, November 5, 2021

WHY WRITTEN CONTRACTS CONTINUE TO BE SUCH A GOOD IDEA

blue150911I’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, they 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 that 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 one the first 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, whom (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 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) as opposed to 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 told Whatley that they intended to also 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.

job150911Held: The summary judgment was granted, and Whatley was dismissed from the suit. The Court started with the observation that under Georgia law, a person who engages an independent contractor is generally not responsible 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 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 it 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 going onto 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

TNLBGray

Case of the Day – Thursday, November 4, 2021

DOING IT ON THE CHEAP

Fred Flintstone's boss dictated the hours, methods and conditions of work. Hence, Fred was an employee.

Fred Flintstone’s boss dictated the hours, methods and conditions of work. Hence, Fred was pretty clearly an employee.

Over the next few days, we’re going to talk about independent contractors in the legal sense. With Uber, Lyft and a host of other “gig” companies around, all of which save money by calling their workers “independent contactors,” the topic is timely. The tree business worries (or should worry) a lot about the status of a worker. A lot of bad things can happen when a worker is misclassified as an independent contractor when he or she is an employee. In the next five days, we’ll try to look at a lot of the pitfalls.

You’d think that determining whether a worker is an employee or independent contractor ought to be pretty cut-and-dried. Fred Flintstone at the Bedrock quarry? Well, he used his employer’s equipment, he did what he was told, he punched a timeclock… clearly an employee. On the other extreme we have the A-Team. They came to you, brought their own weapons (and usually a homemade armored vehicle or two) and a helicopter. They came to do a job, and then left (usually just a step ahead of the Army authorities). No question, they were independent contractors. Very independent contractors.

They brought their own guns - clearly independent contractors.

They brought their own gun, transportation, and – in the case of B.A. Baracas – high-class bling. Clearly, the A-Teamers were independent contractors.

The difference between B.A. Baracas and Fred Flintstone is significant and obvious. But that hardly prevents people from calling one the other when the mood strikes them. Some employers think it’s crafty to label their employees as “independent contractors.” It’s irresistible: no tax withholding, no pesky employer matching of social security payments, no unemployment insurance, and no time-and-a-half for overtime. The IRS fights a never-ending battle against this dodge, and even mandates a test to determine whether your worker is a Fred or a B.A.

There are reasons besides taxation for a principal to try to pound a square employee into a round independent contractor hole. Liability and worker’s compensation are two of those. Over the next few days, we’re going to examine the problem of worker classification as it relates to the arboriculture industry. Today, we’re looking in on a real cheapskate, and how his tightfistedness nearly killed a teenage girl.

Penny-pincher Sulcer had a tenant named Quimby. No, not the Mayor of Springfield, but instead a long-haul trucker. The landlord ignored his tenant’s pleas to trim a dangerous tree, until the tree got in the way of the landlord’s plans. Then he told his tenant — a tree-trimming tyro — to trim it for him, for free, of course.

For some unfathomable reason, Quimby did so. Unfortunately, in so doing, Quimby dropped a limb in a freak accident that struck his high school senior daughter Leslie’s chest, requiring emergency open heart surgery to fix. She survived (even marrying lucky young Mr. Allen during the pendency of the litigation). Sulcer argued that he wasn’t at fault, because Quimby was really just an independent contractor, and it was Leslie’s and Quimby’s fault that she stood too close to the tree while Quimby was cutting limbs.

The trial court bought it, but the Court of Appeals — offended, we hope, that the landlord was getting off scot-free — looked at the issue differently. The question, it properly held, was what Sulcer owed Leslie as a tenant, not as a volunteer worker for her volunteer worker tenant Dad. And clearly, he had breached his duty to keep young Leslie safe from the perils of an unskilled tree-cutter. Of course, the Court couldn’t help but notice the report of Leslie’s arborist: he said a professional trimming job would have cost ol’ tightwad Sulcer $300 to $500. The Court didn’t say it, but we think it was a bit disgusted that the landlord was willing to jeopardize the life and health of his tenants for $500.00.

No, not this Quimby – Leslie Quimby ...

No, not this Quimby – Leslie Quimby …

Allen v. Sulcer, 255 S.W.3d 51 (Tenn.Ct.App., 2007). A landlord told his tenant, Mr. Quimby, to prune large limbs from a tree on the rental property with a chainsaw. The tenant’s 18-year old daughter, Leslie Quimby (now Leslie Allen), was assisting by clearing the limb debris, and suffered an aortic valve rupture and other internal injuries that required emergency open-heart surgery, resulting from the impact of a tree limb that had fallen and ricocheted off the ground, striking her in the chest and chin. At the time of the incident, her father was in an ash tree (about 15 to 20 feet off the ground) in front of his rental house, pruning overgrown limbs with a chainsaw. Ms. Allen was standing in front of the house and assisting her father by clearing the limb debris.

The tenant had previously requested more than once that William E. Sulcer, his landlord who lived 100 yards from the rental house, have the tree pruned. Quimby had voiced his concern that the overgrown limbs, hanging over the house and driveway, would hurt someone. Even though Sulcer had used professional tree services on his farm in the past, he asked Quimby agreed to perform the work because he was tired of the limbs hanging over the house and driveway. Sulcer did not offer to compensate Quimby for his services. Quimby had no training or expertise in pruning or felling trees, or with operating chainsaws, even though he owned one and used it on the limb in question. Sulcer knew Quimby didn’t have experience pruning trees but relied on the fact that Quimby had cut limbs on the property before with no problems. Even so, Quimby had never before trimmed large limbs or climbed into a tree to do so. Other than selecting the limbs, Sulcer provided no other instruction, provided no equipment, and was not present at the time of the injury.

Ms. Allen sued Sulcer, alleging he was negligent as landlord and as the principal of the negligent agent Quimby. She asserted that Sulcer was negligent in instructing her father to undertake such a task, in failing to supervise his activities, and in failing to maintain the leased premises in a safe condition. She argued the negligence of her father should be imputed to Mr. Sulcer under the principles of vicarious liability. Sulcer responded that if there were any relationship between Quimby and himself, it was that of employer and independent contractor. He contended he did not create the alleged dangerous condition and that, if it existed, he had no duty to Ms. Allen because the dangerous condition was known (or should have been known) to her. He argued that, as an employer of an independent contractor, he was not liable for the negligent acts of the contractor, or for injury to the contractor’s helpers.

The trial court found Quimby to be an independent contractor, and it was a well settled principle of law that employers of an independent contractor owe no duty to the employees or “helper” of the independent contractor engaged in an inherently dangerous activity. The trial court granted judgment for the defendant, and Ms. Allen appealed.

tightwad-1-140213Held: The summary judgment for Sulcer was reversed. The Court observed that a successful negligence claim requires the plaintiff to establish a duty of care owed by the defendant to the plaintiff; conduct by the defendant falling below the applicable standard of care that amounts to a breach of that duty; an injury or loss; causation in fact; and proximate cause. The Court said that although the parties agreed that Quimby acted as an independent contractor on behalf of Sulcer, the facts of the case more directly implicated landlord/tenant law. The trial court had overlooked the fact that Ms. Allen was a tenant of Sulcer and failed to account for the possibility of Sulcer’s negligence as a landlord. Thus, the Court held, the dispositive question was whether Ms. Allen encountered a harm whose foreseeability gave rise to a duty of reasonable care on the part of Mr. Sulcer, the landlord, to protect her from the danger of falling limbs.

This is not amateur hour ... as the penny-pinching landlord found out.

This should not be amateur hour … as the penny-pinching landlord found out.

In general, landlords owe a duty of reasonable care to their tenants. When a landlord undertakes to repair or maintain some part of the premises, he owes his tenants a duty to exercise ordinary and reasonable care in seeing the repairs are properly made. In other cases, landlords were held liable for injuries to tenants where they sent unskilled employees to repair units. Here, Sulcer knew that Quimby was unskilled in tree trimming, that he did not want to perform this work, and was afraid of heights. Sulcer didn’t even offer to pay Quimby. He didn’t inquire into safety precautions or any other methods Quimby might use. Sulcer argued he had no duty to Ms. Allen because the danger of falling limbs was open and obvious, and, because the danger was so open and obvious, it was not foreseeable that Quimby would allow her to collect the limbs or be anywhere near the work site. But Tennessee courts have concluded that an open and obvious danger does not automatically result in a finding of no duty and therefore no landowner liability. As in any negligence action, a risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by a defendant’s conduct outweigh the burden upon the defendant to engage in alternative conduct that would prevent the harm.

Here, limbs falling from a tree are not so obvious a adnger as to relieve Sulcer of his duty to hire a competent tree trimmer. Sulcer created an unreasonable risk of harm when he asked an unskilled tenant to conduct work that is dangerous. While the force of a falling limb is predictable, its trajectory while falling and after striking the ground is not. This unpredictability makes the risk of injury from a falling limb more salient when unskilled hands attempt the task. The alternatives available to Sulcer, the Court said, ranged from discussing pruning methods to offering assistance to hiring a professional tree trimmer, all of which, to varying degrees, would have materially lowered or eliminated the probability of such harm with very little burden to the defendant. The Court found that Sulcer had a duty to select someone who would know how to minimize the risk of trimming such large branches.

– Tom Root

TNLBGray140407

Case of the Day, Wednesday, November 3, 2021

FREE GIFT

Some expressions just bug me. “Free gift” is one of them. Of course it’s free. It’s a gift, you knucklehead. What kind of gift would it be if it were not free?

“Free gift” is redundant, a stupid expression, like “past history” and “foreign imports.” And speaking of stupid, sometimes you wonder how someone can have so much money and so little else to do that he or she can afford to fritter time and money away on a stupid lawsuit.

Southern California Edison Co., the company responsible for the Dixie Fire in California, has easements all over southern California for transmission and distribution lines. In today’s case, it had a 10-foot wide easement across Steve Severns’ property for maintaining its lines in such a way as not to set all of LA County aflame.

No problem there. But the easement was vague on how SCE was to get to the easement. The language just said “free access,” and for 77 years, the utility and a succession of property owners understood that a route the owner and the company had agreed upon shortly after the easement was granted was the access easement SCE was entitled to use.

But then Steve bought the place. When SCE needed to replace a pole (and, Steve, you can see what happens when California electric utilities don’t maintain their lines), Steve decided he didn’t like the access route SCE had used for 77 previous years. Trying to be accommodating, SCE agreed to a different route, one so vertical it had to pull its trucks to the easement with bulldozers. But then Steve, who believed without any evidence to back him up, that SCE had agreed to restore the route (where the old route had always been left in place), sealed up his property. He told SCE to use a helicopter to get to its easement.

When SCE sued, demanding the “free access” the easement promised, Steve said, “Oh no, that ‘free access’ just means SCE is free to move around inside its 10-foot easement.”

The law has developed many useful laws of statutory and contract construction over the years. One of the principal canons is to give purpose to every part of the contract, so that no clause is redundant, surplusage or meaningless.

The court put that canon to good use here. Steve’s interpretation of “free access” to mean SCE had free access only within the described 10-foot easement was just plain stupid. It’s SCE’s easement. Of course it had free access within it.

But that being the case, and the canon of construction instructing us to give meaning to every term, then “free access” must mean something else.

Southern California Edison Co. v. Severns, 39 Cal. App.5th 815 (Ct.App. Cal., 2nd Dist., Sept. 10, 2019). Steve Severns owns a 16-acre parcel of property which is subject to a public utility easement granted to Southern California Edison Company. SCE maintains electrical power lines and supporting structures within a 10-foot-wide strip along the eastern boundary of the property. That strip is described by metes and bounds in the recorded conveyances. Each conveyance also grants SCE “free access” to its electrical facilities.

Steve did not dispute that SCE was entitled to use the 10-foot-wide strip described in the easement for utility purposes, but the parties disagree as to whether SCE has the right to gain access to its easement by traversing other portions of the property. For nearly 80 years, until Steve came along, the property owners allowed SCE crews such access. But not Steve.

Steve bought the property in 2006. In 2008, SCE needed to replace three poles. SCE employees discussed the routes that could be used to reach the poles. Steve objected to SCE’s use of the route historically utilized to access pole 5, because he said that SCE trucks had damaged pipes along the route and that it was too close to the back of his house. The parties agreed SCE would build an alternative route. The newly created route was steep and, during the work on the poles, the trucks had to be pulled up the steepest stretch with a bulldozer.

Steve complained the new 2008 route was to be temporary. While there was no written agreement, Steve testified George Perez, an SCE representative, told that after the pole was replaced SCE would put the property back in the same condition that it was in prior to the denied the existence of any such agreement, and refused.

Because of the dispute, Steve changed the gate access code/tumbler box and took other steps to prevent SCE’s access. He told SCE to use adjacent properties or helicopters to access its electrical facilities. SCE sued for interference with easement and declaratory relief. Steve cross-complained, seeking damages for nuisance, trespass and ejectment.

The trial court found, based on the easement language, that SCE had been granted “floating easements” over the property to access its electrical facilities. The floating easements became “fixed” easements when SCE and the property owners agreed on the access routes years before. At that point, SCE became “the owner of an easement of reasonable width” over each agreed-upon access route. The trial court allowed SCE “‘free’ (i.e. unimpeded) access” to those routes.

The trial court further found SCE and Steve had agreed by acquiescence to abandon the original route to pole 5 and to change the location of that access easement to the 2008 route. The court concluded that while SCE may not construct a new access route or use portions of the property falling outside the 10-foot wide strip and the delineated access routes, it may perform geotechnical testing incident to repairs and improvements on those routes and trim or remove interfering trees.

Steve appealed.

Held: SCE held a floating easement to cross the property.

A basis rule of interpreting real estate conveyances, including easements, holds that the intent of the parties to the easement is the paramount consideration. The Court noted that it is not the intent of the grantor that governs in such cases. It is the joint intent of the grantor and the grantee. Grants are to be interpreted in like manner with contracts in general. The interpretation of an easement, which does not depend upon conflicting extrinsic evidence, is a question of law.

Recorded conveyances must be interpreted as a whole, with each clause aiding the interpretation in the attempt to give purpose to every part, and the interpretation should, where possible, give effect to every part so that no clause is redundant.

The Court observed that some expressly granted easements – commonly known as floating easements – are not specifically defined as to location by the creating conveyance. These easements are nonetheless fully valid and enforceable by their holders. An easement granted in general terms, nonspecific as to its particular nature, extent or location, is perfectly valid, the Court said, entitling the holder to choose a reasonable location and to use such portion of the servient tenement as may be reasonably necessary for the purposes for which the easement was created.

What’s more, the use actually made by the holder over a period of time fixes the location and the nature and extent of the use. Such an easement necessarily carries with it not only the right but also the duty to maintain and repair the structure or facility for which it was created.

Where an instrument conveys or reserves an unlocated, floating easement, it is presumed that the parties intended to establish a reasonably suitable and convenient route in view of the anticipated needs of both parties. The easement right cannot be exercised over the entire servient tenement, but until the easement is located by agreement of the parties, it is a cloud on the title to all of the property.

In this case, the Court said, SCE’s recorded conveyances do not identify the portion or portions of the property that the company may use for “free access” to its electrical facilities. Steve argued the “free access” language in the conveyances simply means SCE is entitled to move freely within the 10-foot-wide metes-and-bounds easement area. Steve’s interpretation made no sense. “It is undisputed,” the Court observed, “that the recorded conveyances, taken together, grant SCE easements over the 10-foot-wide strip for utility purposes. This grant would be meaningless if SCE could not move freely within that strip to construct, replace, inspect and maintain its electrical power poles, lines and equipment.” Because SCE’s right to move freely within the 10-foot area is not dependent upon the ‘free access’ language, the Court ruled, “the only reasonable interpretation is that the grantors of the easement intended, through that language, to grant SCE some right of access over the property to reach its electrical facilities. Under Severns’ interpretation, the “free access” language would be both redundant and unnecessary.”

Even if the Court were to assume the “free access” language was ambiguous, the extrinsic evidence established the grantors understood the recorded conveyances granted SCE the right to traverse the property to access the 10-foot-wide strip. “It is a cardinal rule of construction that when a contract [or conveyance] is ambiguous or uncertain,” the Court held, “the practical construction placed upon it by the parties before any controversy arises as to its meaning affords one of the most reliable means of determining the intent of the parties.” Here, the evidence confirmed that for decades the grantors freely allowed SCE to drive over the property to access its electrical facilities. Even Steve s permitted access until the dispute arose over the restoration of the 2008 route. “This historical usage of the property is consistent with our interpretation of the conveyances,” the Court ruled.

The exception to the historical easement involved the route to pole 5. The route changed in 2008 when Steve asked SCE to construct an alternative route to that pole. Because substantial evidence supported the trial court’s finding that “the original route across the north side of the house has been abandoned and that the road along the east side of the house has been established as the new access route,” the new route because SCE’s new easement route. “We are not persuaded,” the Court said, “by Severns’s argument the 2008 route was meant to be temporary. The court heard conflicting testimony on this issue and ruled in SCE’s favor. Such credibility determinations are the province of the trial court.”

– Tom Root

TNLBGray140407