Allen v. Sulcer, M2006-01236-COA-R3-CV.

• Decision Date: 27 August 2007
• Docket Number: No. M2006-01236-COA-R3-CV.,M2006-01236-COA-R3-CV.
• Citation: 255 S.W.3d 51
• Parties: Leslie Quimby [ALLEN] v. William E. SULCER, et al.
• Court: Tennessee Court of Appeals

255 S.W.3d 51

Leslie Quimby [ALLEN] v. William E. SULCER, et al.

No. M2006-01236-COA-R3-CV.

Court of Appeals of Tennessee, at Nashville.

May 30, 2007 Session.

August 27, 2007.

Application for Permission to Appeal Denied by Supreme Court January 28, 2008.

David L. Cooper, Nashville, Tennessee, for the appellant, Leslie Quimby Allen.

Michael D. Cox, Columbia, Tennessee, for the appellees, William E. Sulcer, individually, William E. Sulcer and Ella Will Sulcer, Trustees for and Lifetime Beneficiaries of the Sulcer Family Trust, and Sulcer Family Trust.

OPINION

DAVID R. FARMER, J., delivered the opinion of the court, in which HOLLY M. KIRBY, J. and DONALD P. HARRIS, SR. J., joined.

This is a negligence action. A landlord instructed his tenant to prune large limbs from a tree on the rental property with a chainsaw. The tenant's eighteen year old daughter was assisting by clearing the limb debris and sustained severe internal injuries from a falling limb. The daughter instituted this negligence action against the landlord, relying on theories of the landlord's negligence and vicarious liability. The trial court granted summary judgment for the defendant landlord. Finding that the defendant did not carry his burden on the issue of the duty to select a competent contractor, we reverse and remand.

The facts of this case are largely undisputed. On December 28, 2002, Leslie Quimby Allen (Ms. Allen)¹, the then-eighteen year old daughter of Ron and Alfreda Quimby (Mr. Quimby, Ms. Quimby, or the Quimbys), sustained an aortic valve rupture and other internal injuries that required emergency open-heart surgery at Vanderbilt University Medical Hospital. Her internal injuries resulted from the impact of a tree limb that had fallen and ricocheted off the ground, striking Ms. Allen in the chest and chin. At the time of the incident, Mr. Quimby, a commercial truck driver, was in an ash tree (approximately 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. When her mother found her after the accident, Ms. Allen was not positioned directly under the tree.

Mr. Quimby had previously requested that Mr. William E. Sulcer (Mr. Sulcer), his landlord who lived 100 yards from the rental house, have the tree pruned. According to Ms. Allen, her father had had at least two previous discussions with Mr. Sulcer about the tree. Mr. Quimby voiced to Mr. Sulcer his concern that the overgrown limbs, hanging over the house and driveway, would hurt someone. Ms. Allen said her father

just went up [to Mr. Sulcer's house] and told him about the branches because they were bad.

. . . . And Mr. Sulcer had said that — he said, no, I'll get somebody out here; I'll get somebody out here. At first, he said, can I do it; and — or can my dad, Ron Quimby, do it. He said, no, I don't like heights; I don't like doing it — and all of this. So then he said, I'll get somebody out there; I'll get somebody out there. So then one day Mr. Sulcer comes to our door.

Mr. Sulcer appeared at the door, asked Mr. Quimby to come outside, and pointed to the branches that needed pruning to accommodate the raised bed of a dump truck. Mr. Sulcer was planning to resurface the access road in front of the Quimby's house with gravel because it had fallen into disrepair, resulting in Mr. Quimby's truck getting stuck in mud three weeks before. Mr. Sulcer identified the limbs he wanted cut, which included the 25- to 30-foot long limb (with a diameter of 12 to 14 inches) that injured Ms. Allen. In his deposition, he described the limb as a "big one." According to Ms. Allen, even though Mr. Sulcer had used professional tree services on his farm in the past, Mr. Quimby agreed to perform the work because he was tired of the limbs hanging over the house and driveway. Mr. Sulcer did not offer to compensate Mr. Quimby for his services.

Mr. 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. Mr. Sulcer knew Mr. Quimby did not have experience pruning trees but relied on the fact that Mr. Quimby had cut limbs on the property before with no problems. Even so, Mr. Quimby had never before trimmed large limbs or climbed into a tree to do so. Other than selecting the limbs, Mr. Sulcer provided no other instruction to Mr. Quimby. He gave no equipment to Mr. Quimby and was not present at the time of the injury.

At the time of the incident, Ms. Allen was eighteen years old and lived in her parents' home with her two-year old daughter. The only instructions Ms. Allen remembered receiving were those of Mr. Quimby, cautioning her to "stay back." The record contains very little information about where Ms. Allen was standing when the limb struck her. It only reveals that the limb fell to the ground and bounced up to hit her; that Ms. Allen was not located directly under the tree when her mother found her after the injury; and that Ms. Allen had been standing "to the left of Mr. Quimby and . . . behind the tree" or "not on the side of the driveway, [but] on the side of the house."

Ms. Allen filed a complaint against Mr. Sulcer² on December 22, 2003, alleging the negligence of Mr. Sulcer as landlord and as the principal of a negligent agent, Mr. Quimby. With respect to Mr. Sulcer's negligence, Ms. Allen asserted that Mr. Sulcer was negligent in instructing her father to undertake such a task and in failing to supervise his activities. Moreover, she contended Mr. Sulcer was negligent in failing to maintain the leased premises in a safe condition. She also contended that the negligence of her father should be imputed to Mr. Sulcer under the principles of vicarious liability.

Mr. Sulcer answered and denied the allegations of his negligence, specifically averring that Ms. Allen was negligent; that Mr. Quimby's failure to warn Ms. Allen and to keep her away from the area constituted an intervening act and the proximate cause of her injuries; that Mr. Sulcer owed no duty of care to Ms. Allen; and that there was no agency relationship between Mr. Sulcer and Mr. Quimby. Mr. Sulcer averred in the alternative that if there were any relationship between Mr. Quimby and Mr. Sulcer, it was that of employer and independent contractor. Mr. Sulcer filed a motion for summary judgment, three affidavits, and a statement of undisputed facts and first contended that 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. The motion next addressed Ms. Allen's vicarious liability claim. Mr. Sulcer asserted that there was no relationship between himself and Mr. Quimby, but, if there were, it could only be that of employer and independent contractor. He argued that, as an employer of an independent contractor, he was not liable for the negligent acts of that individual. Finally, Mr. Sulcer relied upon comparative fault and contended that Ms. Allen was 50% or more at fault for her injuries.

After Mr. Sulcer filed the answer and a motion for summary judgment, Ms. Allen filed a motion to amend the complaint to include the independent contractor relationship and to specify that Mr. Sulcer was negligent in failing to employ a professional tree service. She had also filed the affidavit of her mother, the depositions of Mr. Sulcer and herself, and a report compiled by a certified arborist. Soon thereafter, she filed a response to Mr. Sulcer's statement of undisputed facts along with her statement of undisputed facts. Between the two statements of undisputed facts, the only disputed points involved Ms. Allen's contentions based upon the report of her certified arborist.³ With his response to Ms. Allen's statement of undisputed facts, Mr. Sulcer also filed a motion to strike the arborist's report.

The trial court heard argument on May 6, 2006, and granted summary judgment in favor of Mr. Sulcer. The court specifically found Mr. Quimby to be an independent contractor. The parties do not dispute this finding on appeal. In a memorandum opinion, the court noted that

[t]he theory of collateral negligence is a factor to consider. The facts [of] this case are on all fours with the example given by the Restatement (Second) of Torts, Section 427.

. . . . Ron Quimby had the plaintiff picking up the branches while [he] was cutting the branches. . . . Ron Quimby's collateral negligence created a new risk by having his daughter help him. . . .

It is 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 plaintiff's claims fail as a matter of law. The undisputed facts establish that Ron Quimby was an independent contractor and the defendants are not liable for any negligence of Mr. Quimby. The defendant[ ]s had no duty to the plaintiff because they did not exercise any control over Mr. Quimby or his employee, the plaintiff.

The court entered an order on May 23, 2006, adopting verbatim the memorandum opinion previously issued and filed. It never expressly ruled on Ms. Allen's motion for leave to amend the complaint or on Mr. Sulcer's motion to strike the report of Ms. Allen's certified arborist.

Issues Presented and Standard of Review

On appeal, Ms. Allen presents the following issues for review:

(1) Whether the trial court erred in granting summary judgment to the Appellees pursuant to Rule 56 of the Tennessee Rules of Civil Procedure based on the Appellant's claims of negligence as to the actions of Appellee William Sulcer when he instructed Ron Quimby, an independent contractor, to trim large tree limbs on his property that ultimately caused serious personal injury to the Appellant; and

(2) Whether the trial court erred...