Open and Obvious Danger in Cutting Down a Tree
Who is responsible if you ask a neighbor to cut down a tree on your property and, in doing so, the tree falls injuring you? In a case that was heard before the Massachusetts Court of Appeals recently, an injured man was the owner of property in need of trimming a tree. A rather large branch needed to be cut from the tree; the branch was 5 inches in diameter and approximately 10 feet long.
The owner sought the help of a landscaper who was working across the street. The landscaper set up the ladder and the homeowner cut the branch. Unfortunately, the branch fell, hit the ground, and bounced back and hit the plaintiff. As a result, the plaintiff suffered serious injuries: a broken wrist, broken arm, scarring and permanent loss of function to his right, major arm.
Who Is Responsible When Both Parties are Negligent?
The jury must decide, based on the facts, who is the most negligent. In Massachusetts, if you are more than 50% negligent in causing someone’s injury, you are at fault and responsible for the damages to that person. In this case, the parties went before the court to determine if there was sufficient evidence to even get the case to the jury.
Following some discovery, cases often go to the court to determine if the law would not allow the case to proceed even if the plaintiff can prove everything he says he can. Such a motion, often filed as a summary judgment motion, will be heard by a judge, and sometimes appealed. In this case after the court made a determination that even if everything the plaintiff proved was true, it could not be the defendant’s fault because the condition was “open and obvious.” The injured plaintiff appealed to the Court of Appeals.
Open and Obvious Dangers?
The defendant argued that this was an open and obvious danger, akin to diving into the shallow end of a swimming pool and getting injured. The Appeals Court agreed with the plaintiff saying that it was not common knowledge that a tree could, in this particular setting, be cut and bounce back in this particular way. In fact, considering that both parties had time to determine how to cut the branch, it was absolutely unclear that this risk was in any way open and obvious.
Experienced Personal Injury Attorney for Serious Injury Cases
Absent the knowledge of an experienced personal injury attorney, this case could not have proceeded. Undertaking careful discovery, including getting the testimony of the defendant landscaper, would be necessary to provide facts to the judge and appeals court judges about what the testimony at trial would be. Discounting the analogies made by the insurance defense lawyers at the time of the appeal would be necessary for your personal injury attorney.
Thus, distinguishing the swimming pool cases from the tree case was critical. The judge in the Superior Court believed in that argument. The tenaciousness of the experienced personal injury attorney, however, succeeded in having the Court of Appeals turn around the decision and grant the injured plaintiff his day in court.