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)

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.

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Just In Time For Summer, A New Decision On When You Are Required To Clear Snow From Your Property

In the recent past, I have written several posts about when property owners can be liable for accidents caused by their failure to shovel snow from the sidewalks abutting their property. The basic rules are well settled – residential property owners generally don't have a duty to shovel but commercial property owners do. Therefore, my posts focused on the more unique (and hopefully, interesting) cases. For example, one post discussed whether a property was residential or commercial, and therefore whether the property owner would be required to shovel or not, when the owner lived in one unit of the multifamily building and rented out the other units. Another post discussed whether a lender who obtained final judgment of foreclosure on a commercial property, but that had not yet taken title to the property through a sheriff's sale, was required to shovel the sidewalks around the building.

Now there is another case that is somewhat different than the traditional snowy sidewalk slip and fall. In Holmes v. INCAA-Carroll Street Houses Corp, plaintiff was a tenant in a property owned by defendants. She sued after she slipped, while on the way to her car, on "an accumulation of snow" approximately three feet from the doorway to her apartment. (The area where she fell was actually not a sidewalk, but was instead a "lawn or grassy area," but this distinction was not relevant to the court's decision.) A snowstorm has been raging since the night before. The snow had slowed, and perhaps even stopped, by the morning of the accident, but the storm had nonetheless dropped more than 15 inches of snow on the area. The conditions in the area were so severe that, when plaintiff's son called an ambulance to take her to the hospital, the ambulance company refused because of poor road conditions. The roads were not clear until the following day, at which point plaintiff drover herself to her doctor's office to be examined.

Plaintiff alleged that defendant had a duty to clear the snow from the property. Defendant moved for summary judgment, arguing that it had no duty to do so in the middle of a storm. The court agreed with defendant.

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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.”