Case of the Day – Wednesday, November 13, 2019

GOTTA LOVE THE INTERNET

Time was that the older you got, the more your early memories morphed into wispy tendrils that may have been true, may have been dreams, may have been whole-cloth fiction, but never could be verified.

Not with the Internet around. When I was reading today’s case, something caused me to think I remembered an old ditty from Captain Kangaroo about a railroad running through the middle of a house. I’ve recalled it before, thinking about what kind of an ironclad easement must have let the Capital Limited thunder between the sofa and Barcalounger. But I never really knew whether I recalled the song, imagined the song, or made it up one night 60 years ago.

But the Internet never forgets. It only took about 60 seconds to find “The Railroad Runs Through The Middle of the House,” a 1956 hit written by Bob Hilliard and recorded by Rusty Draper and Vaughn Monroe (independently of each other).

To be sure, the song is imprecise. The railroad probably did not buy the land, but instead simply got a right-of-way through the house. The premise is undoubtedly apocryphal, but the nature of a right-of-way – which is an easement on steroids – confuses a lot of people. Just ask the woman in the street who owns the gap of grass between the sidewalk and street (we Midwesterners call it a “tree lawn”).

Most people think the city or county owns it. Not so. The abutting landholder owns to the centerline of the street, subject to the government owning the right-of-way doing pretty much whatever the hell it likes within the right-of-way (consistent with the purpose of the R-O-W).

In today’s case, county employees cut down trees standing in the right-of-way of a road, because overhanging branches were affecting motorists. The landowner complained that those were his trees, and the county had no right to destroy them. Imagine a track crew rolling through your family room and removing a chandelier because it hit the tops of boxcars. That’s how Jeff felt.

Alas, the trees were within the county’s R-O-W, and – while the Court did not state the obvious – overhanging branches interfered with the use for which the R-O-W was granted, which was a highway.

Alberhasky v. Johnson County, 670 N.W.2d 430 (Iowa App. 2003). The owner of property abutting a county road brought an action against the County following removal of trees from his property in order to improve the road right-of-way. The county engineer claimed that the trees formed a canopy over the road that obstructed larger vehicles and kept the dirt road from drying out.

All of the trees removed from Alberhasky’s side of the road were within the county’s right of way. The trial court told the jury that if trees were removed outside the county’s right-of-way, jurors should return a verdict for Alberhasky.

The jury found for Johnson County, and Alberhasky appealed.

Held: The county acted within its rights under Iowa Code § 314.7.

The Court acknowledged that Jeff, as abutting landowner owned the land to the centerline of the road subject to the easement rights of defendant. It agreed that county employees in charge of maintenance work on a county road cannot enter property adjoining the right of way to remove or injure trees located on that property without the landowner’s permission, but they may lawfully remove trees in the right of way or branches of trees that overhang the right of way.

Despite a state policy in favor of trees expressed in Fritz v. Parkison, the facts submitted to the jury established that tree branches regularly struck the equipment used to maintain the road, breaking mirrors, antennas, lights and scraping paint. School buses could not go down the road because tree branches scraped the yellow warning lights off the tops. In one case, a fire truck was unable to use the road, requiring an extra 4-mile trip and resulting in the loss of a building. The trees removed included dead elms, mulberries, cedars and others of varying sizes.

The Court of Appeals held that trimming back the branches offered an inadequate solution, since branches grew back and had to be trimmed frequently. Removal of the trees, it said, was the only long-term solution.

– Tom Root

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Case of the Day – Tuesday, November 12, 2019

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 roller blade or (as in today’s case) bounce on a trampoline?

Even if you – a rational, thoughtful and risk-adverse 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 the 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 on House of Boom on behalf of her daughter in Federal district court. House of Boom, relying on Kathy’s legal power to waive her daughter’s rights of her court 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 the 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 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 preinjury 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

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Case of the Day – Friday, November 8, 2019

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

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Case of the day – Thursday, November 7, 2019

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.

Want to know more about how to protect yourself by ensuring that your independent contractor status is secure?  Check out our book, Contract Basics for Arborists.  The book includes a CD of contract forms that are ready to use or adapt to your situation.

– Tom Root

TNLBGray

Case of the Day – Wednesday, November 6, 2019

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 – Tuesday, November 5, 2019

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.

verbal150911Whatley 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 – Monday, November 4, 2019

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 emerging, 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