Opinion
13-P-279
04-23-2014
JOSE BONANO v. JEANNE PELLERIN-KOS & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We review de novo the Superior Court's allowance of the defendants' motion for summary judgment. We consider the evidence as we must in the light most favorable to the nonmoving party, the plaintiff. See, e.g., Alioto v. Marnell, 402 Mass. 36, 37 (1988). Viewed thus, it showed the following. Defendant Dean Kos asked the plaintiff to cut a branch off one of the trees on property that he controlled jointly with his wife, defendant Jeanne Pellerin-Kos. The branch was approximately fifteen to eighteen feet off the ground, ten feet long, and four to five inches thick. Pellerin-Kos was insistent that the branch be removed as soon as possible, so on the day in question, Kos first attempted to undertake the task himself. He put a standard twelve-to-fifteen-foot ladder against the trunk of the tree, with the branch just above the top of the ladder, and more than once climbed the ladder to determine whether and how best to sever the branch. Although Kos had access to the necessary tools, he concluded that it was not safe to cut the branch himself, so he did not do so. He was concerned both that the branch was so high, and that the cut branch might knock him off the ladder, either because it "might come down and hit me," or due to a "kickback event," in which the branch might bounce back and knock him down.Kos noticed the plaintiff using his chainsaw at a neighbor's property across the street where the plaintiff was clearing brush. He crossed the street and asked the plaintiff if he would cut the branch down, in exchange for which Kos said he would help the plaintiff by removing from the neighbor's premises the brush that had been cleared. The plaintiff agreed, and they walked together to the tree in question. The plaintiff climbed the ladder, which was sturdy, while Kos held it at the bottom. The plaintiff held the top rung of the ladder with his right, dominant hand, and cut the branch with the chainsaw in his left hand. The far tip of the branch hit the ground first, and the branch sprang back, hitting the plaintiff on his left leg and knocking him off his perch high atop the ladder. The chainsaw fell to the ground but did not harm anyone. The plaintiff also fell to the ground, breaking his right wrist and radius. As a consequence of the injury, he incurred medical expenses and lost income. There is evidence in the record that the plaintiff had engaged in landscaping work, at least for friends and neighbors, as a side job, for approximately twenty years. He was not incorporated, nor did he operate under any trade name; he obtained referrals without advertising and only by word of mouth. There is no evidence in the record that he had ever cut a branch off a tree of any comparable size to that at issue here.
There is some dispute in the record as to whether Kos and Pellerin-Kos were coowners of the property. See infra note 3.
The defendants argue primarily that the risk of the branch bouncing back as it did was "open and obvious" as a matter of law. That is what the judge in the Superior Court concluded in a five-page handwritten opinion.
The question whether a danger is open and obvious is ordinarily one for the jury. See, e.g., Dos Santos v. Coleta, 465 Mass. 148, 151-152 (2013) (describing jury instructions on open and obvious danger). As part of a landowner's common-law duty of reasonable care, landowners have "an obligation 'to warn visitors of any unreasonable dangers of which the landowner is aware or reasonably should be aware.' . . . However, '[l]andowners are relieved of the duty to warn of open and obvious dangers on their premises because it is not reasonably foreseeable that a visitor exercising (as the law presumes) reasonable care for his own safety would suffer injury from such blatant hazards."' Id. at 154, quoting from Davis v. Westwood Group, 420 Mass. 739, 742-743 (1995), and O'Sullivan v. Shaw, 431 Mass. 201, 204, 211 (2000) (O'Sullivan).
Of course, even where a defendant has a duty to warn because a risk is not sufficiently open and obvious to meet the legal definition, a plaintiff's comparably greater knowledge concerning that risk will bear on the question of his comparative fault for any injury he may suffer. "[T]he reasonableness of the plaintiff's decision to encounter the obvious risk bears on the question of his comparative fault for his injury." Dos Santos v. Coleta, 465 Mass. at 157 n.10. Nonetheless, the fact that the plaintiff may have expertise in assessing the risk does not relieve the landowner of this common-law duty, and the first question with which we are presented relates to that duty.
The defendants contend that the risk of a branch bouncing and "kicking back" is, as a matter of law, "open and obvious." They rely on the reasoning of the shallow swimming pool cases. See, e.g., O'Sullivan, 431 Mass. at 211 ("because the danger of diving into the shallow end of a swimming pool is open and obvious to a person of average intelligence, the defendants had no duty to warn the plaintiff of this danger as a matter of law").
We disagree. We cannot say that it is within common knowledge that a falling branch may have physical characteristics such that in its particular physical setting it may, if cut, bounce with sufficient force and in the direction necessary to cause injury to the individual who has cut it. In this case, for example, defendant Kos himself seemed to have concluded that the branch at issue presented such a risk only after twice examining its situation. Consequently, we think it is a question best left with the jury whether the open and obvious nature of the risk negated any duty on the part of Kos, who was himself aware of the danger, to warn the plaintiff. Cf. O'Sullivan, 431 Mass. at 204 (duty of reasonable care includes duty "to warn visitors of any unreasonable dangers of which the landowner is aware"); Quinn v. Morganelli, 73 Mass. App. Ct. 50, 55 (2008) ("exceptions [to the open and obvious danger rule] could be found to exist in situations where it remains reasonably foreseeable that the danger would cause injury despite the fact that the danger is obvious or was brought to the plaintiff's attention").
We may, however, affirm the grant of summary judgment on an alternative ground. Rasheed v. Commissioner of Correction, 446 Mass. 463, 478 (2006) (reviewing court may affirm summary judgment on any grounds appearing in the record). The defendants argue in the alternative that the grant of summary judgment in their favor may be sustained because "[i]f a plaintiff is more than fifty percent responsible for its own injuries, the plaintiff's conduct will bar any recovery." Savers Property & Cas. Ins. Co. v. Admiral Ins. Agency, Inc., 61 Mass App. Ct. 158, 160 n.1 (2004). While it may be that the plaintiff was more than fifty percent responsible, and that the plaintiff's own negligence was greater than the negligence attributable to the defendant, the resolution of that question, too, is best left to the jury. Among other things, the record provides insufficient information with respect to the plaintiff's background and experience in cutting down tree branches to support a conclusion as a matter of law that he was more than fifty percent responsible for his injuries.
This analysis applies to, and the judgment is reversed with respect to, both Kos and Pellerin-Kos. The judge granted summary judgment for Pellerin-Kos stating that there was no support for the action against her. But the defendants' only independent argument for summary judgment in favor of Pellerin-Kos is that "Bonano admits that Mrs. Kos was inside her home prior to and during the subject incident." At his deposition, Kos asserted that he had no interest in the subject property. If not, his wife is the landowner who is alleged to have a duty and to have breached it; Kos may have been acting as her agent. Summary judgment in her favor therefore is not appropriate. It is the defendants' current position that Kos and Pellerin-Kos own the property together. Given Kos's deposition testimony we need not decide whether and to what extent she might be liable as his coowner.
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The plaintiff's appeal relates only to his claims for negligence, two counts out of the six on which the lower court granted summary judgment. For the foregoing reasons, the grant of summary judgment as to the negligence claims is reversed. In all other respects, the judgment of the lower court is affirmed.
So ordered.
By the Court (Trainor, Vuono & Rubin, JJ.)