Neighbor’s Tree Limbs Hanging Over Your Yard? Just Rent A Chainsaw, Climb A Ladder, And Cut Them. What Could Go Wrong?

     by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Chainsaw (pd)Turns out, a lot could go wrong. But, if it does, the neighbor whose tree limbs inspired you to climb the ladder, chainsaw in hand, probably won't be responsible, at least according to the holding in Corbisiero v. Schlatter.

In Corbisiero, plaintiff was a tenant in mixed-use property that was adjacent to defendant's property. In Spring 2013, some twigs and branches fell from tress located on defendant's property onto the property where plaintiff lived. Plaintiff asked defendant to cut down some of the branches that extended onto the property, which defendant did. A few months later, plaintiff asked defendant to cut down some more branches. Defendant told plaintiff that she would do it when she had time.

Apparently unwilling to wait for defendant to get to it, plaintiff spoke to her landlord about cutting the branches herself. Her landlord told her that "if [the tree limbs] grew over his property . . . we [can] cut them down." The landlord also told plaintiff that he would reimburse her for the cost of a chainsaw to be used to cut down the limbs. It is unclear if the landlord was suggesting that plaintiff both buy the chainsaw and cut the limbs down (as opposed to buying the chainsaw and having someone else do it), but plaintiff nonetheless chose to take matters into her own hands and do both. 

Continue reading “Neighbor’s Tree Limbs Hanging Over Your Yard? Just Rent A Chainsaw, Climb A Ladder, And Cut Them. What Could Go Wrong?”

Climbing A Light Pole Is Incidental To Fixing The Light At The Top, Therefore Property Owner Not Liable For Independent Contractor’s Injuries

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Parking lot lights (pd)On this blog I have occasionally written about the duty owed by landowners to, among others, visitors and trespassers and folks walking along a landowner's sweetgum-spiky-seed-pod-riddled sidewalk. In Pisieczko v. The Children's Hospital of Philadelphia, the Appellate Division addressed a similar situation — the duty owed by a landowner to an independent contractor performing work on its property. 

In Pisiaczko, plaintiff was an independent contractor who worked for defendant "doing odd jobs, such as repairing different fixtures, changing lights, and installing tiles." In this capacity, he was hired by defendant to repair lights, which were "affixed to wooden poles" and located in one of defendant's parking lots. Defendant provided no guidance or supervision to plaintiff. Before beginning his work, plaintiff pushed on one of the wooden poles to make sure it was sturdy. When it did not move, he took a ladder, leaned it against the pole, and extended it to approximately two feet below the light fixture. He secured the ladder with straps around the pole. Unfortunately, while plaintiff was on the ladder testing the fixture, the pole broke. Plaintiff jumped off the ladder from about 20 feet to avoid falling into barbed wire. He injured his heel in the process.

Plaintiff sued. He alleged that the pole was rotten inside, which caused it to break. (The parties agreed that the rot was not visible before the pole broke.) Defendant moved for summary judgment, arguing that it was not liable for plaintiff's damages because the decision to place the ladder against the pole was incident to the specific work plaintiff was hired to perform.  The trial court agreed and granted the motion. Plaintiff appealed.

Continue reading “Climbing A Light Pole Is Incidental To Fixing The Light At The Top, Therefore Property Owner Not Liable For Independent Contractor’s Injuries”

Homeowner not liable for sweetgum spiky seed pod slip and fall

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Sweetgum treeIn the past, I have written about whether property owners can be liable for slip-and-fall accidents caused by ice and snow on their sidewalks. (Click here, here, and here for examples.) This is the first time I will address the related topic of whether property owners can be liable for accidents caused by "spiky seed pods" that fall from sweetgum trees on their property. Turns out that the source of the slippery sidewalk does not change the law too much for residential property owners.

In Neilson v. Dunn, plaintiff was injured when she slipped on spiky seed pods that fell from a sweetgum tree on defendant's property onto an adjacent sidewalk. The tree had been on defendant's property since she and her husband bought it, and plaintiff knew that there were seed pods on the sidewalk when she began her walk. Defendant also "employ[ed] a lawn maintenance contractor whose services include fall and spring clean ups." The most recent clean up occurred two month's prior to plaintiff's accident.

After plaintiff sued, defendant moved for summary judgment, arguing that she could not be liable for plaintiff's injuries because she had neither created nor exacerbated a dangerous condition on the sidewalk. She argued that the "seed pod accumulation" was a natural condition over which she had no control, and that she acted reasonably in retaining a lawn maintenance service to "periodically clean up any debris, [including the seed pods,] on her lawn and sidewalk." Plaintiff countered that defendant had a duty to ensure that her property was spiky seed pod free and that her failure to do so created a hazardous condition.

Continue reading “Homeowner not liable for sweetgum spiky seed pod slip and fall”

Applebee’s Has No Duty To Warn You That Your Plate Of Smoking, Sizzling Fajitas Is Hot

by:  Peter J. Gallagher (@pjsgallagher)

In the interest of full disclosure, my family and I are frequent Applebee’s patrons. We have four kids, so casual dining is a staple of our dining out experience and there is an Applebee’s right near our house. We like Applebee’s food a great deal. Although I have never had the fajitas, it is hard to miss them when a waitress walks by with a loud, smoking plate of sizzling meat and vegetables that always inspires my kids to ask “what is that!”

With that confession out of the way, we turn to the recent Appellate Division decision in Jiminez v. Applebee’s Neighborhood Grill & Bar. In that case, plaintiff sued Applebee’s after he was injured while dining. Plaintiff, who was eating with his brother, ordered the fajitas and the waitress placed his plate — which plaintiff described as “sizzling,” “real dark,” “smoking,” and “real hot” — right in front of him. According to plaintiff, the waitress did not warn him that the plate was hot, but instead simply said “enjoy your meal.” Then this happened:

After the waitress walked away, [plaintiff’s brother] “reached over and said let’s have prayer.” Plaintiff bowed his head “[c]lose to the table.” Plaintiff said he heard a loud, sizzling noise, followed by “a pop noise,” and then felt a burning sensation in his left eye and on his face.

Plaintiff panicked, knocked his plate onto his lap and caused his prescription eye glasses to fall from his face. Plaintiff said he tried to push away from the table with his right arm. He used his left arm to brush the food from his lap. He soon felt that he had “pulled” something in his right arm. He stopped applying pressure to the table, “let [his] [right] hand go because [he] felt pain,” and “banged” his elbow on the table.

As a result of this incident, plaintiff sued, alleging that he was “injured as a result of defendants’ negligence when he came into contact with a dangerous and hazardous condition, specifically, ‘a plate of hot food.’” After discovery, defendants moved for summary judgment, arguing that, even if the fajitas were a dangerous or hazardous condition, they were entitled to summary judgment because the condition was open, obvious, and easily understood. The trial court agreed and granted the motion.

The Appellate Division affirmed. It noted that a business owner generally owes its invitees “a duty of reasonable . . . care to provide a safe environment for doing that which is within the scope of the invitation.” This duty requires the business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating unsafe conditions. In Jiminez, unlike most cases, the alleged dangerous condition was a “sizzling fajita platter,” nonetheless the Appellate Division analyzed it under the same general principles.

The Appellate Division held that, notwithstanding the general duty that a business owner owes its invitees, Applebee’s had no duty to warn plaintiff about the dangers associated with the fajitas because the risk was readily foreseeable to plaintiff. Specifically, the Appellate Division held that: the fajitas were “sizzling, smoking and ‘real hot’” when delivered to plaintiff; once delivered, Applebee’s had no control over the fajitas; and plaintiff had the “opportunity and ability to act to protect himself from any danger that it posed, since the danger was open and obvious.” Under these circumstances, the Appellate Division held that “imposition of a duty . . . to warn plaintiff of the danger presented by the sizzling hot platter [was] not required as a matter of fairness and sound policy.”