Gentile v. Vecchio
| Decision Date | 12 December 1960 |
| Docket Number | No. 10143,10143 |
| Citation | 166 A.2d 126,92 R.I. 38 |
| Parties | Albert GENTILE v. Americo VECCHIO. Ex. |
| Court | Rhode Island Supreme Court |
George Ajootian, Providence, for plaintiff.
Gunning & LaFazia, Providence, for defendant.
This action of trespass on the case for negligence was brought by the plaintiff to recover damages for personal injuries sustained by him while employed by the defendant to assist in clearing certain property of brush and shrubs. The case was heard on the demurrer of the defendant to the second amended declaration of the plaintiff by a justice of the superior court, who thereafter sustained the demurrer as to all counts. The case is before this court on the plaintiff's exception to that ruling.
The instant declaration is in five counts, in each of which it is alleged in substance that in May 1958 plaintiff was casually employed by defendant to assist in clearing a plot of land of shrubs and brush; that in the course of such work defendant directed plaintiff to ascend into a high tree for the purpose of removing a limb; that as plaintiff was cutting the limb with a saw it cracked and swung downward, striking him and throwing him to the ground; that plaintiff is a truck driver by occupation and is without experience in the work of trimming trees and was unable to appreciate the risks involved therein; that the cutting of trees is a hazardous and complicated operation for which special training or experience is required; and that plaintiff had no such training and was without such experience, which fact was known or reasonably should have been known by defendant. In each count a duty peculiar to the relationship of master and servant is stated and a breach thereof alleged.
The casual nature of plaintiff's employment by defendant having been admitted by the demurrer, it follows that the provisions of the workmen's compensation act are without application to this employee. In such circumstances certain common-law defenses available to employers under the law of master and servant may properly be invoked by defendant in this case. See general laws 1956, §§ 28-29-2 and 28-29-3.
From the rescript it appears that the trial justice sustained the demurrer primarily on the ground that the declaration revealed an assumption by plaintiff of the risks involved in the employment that barred his recovery in the instant action. It is settled in this state that an employee who enters into a hazardous occupation, knowing of its perils, assumes the risk thereof and may not recover damages from the employer for injuries consequent to such risks. Kelley v. Silver Spring Bleaching & Dyeing Co., 12 R.I. 112, 116.
As we understand it, however, plaintiff's contention is that in each count of the declaration he has set out allegations that negative an assumption by plaintiff of the risks of the employment and that because of such allegations the trial justice erred in finding as a matter of law an assumption of the risk on the part of plaintiff. The allegations for which such effect is claimed are, in substance, that tree trimming is a hazardous occupation that requires training and skill, that plaintiff lacked training and instruction in such work and was without experience therein, and that he was therefore unable to appreciate the dangers involved in the work and was not warned concerning such dangers.
It is true that an employee will not be held to have assumed the risks involved in hidden or concealed defects or dangerous conditions or in circumstances where he is without knowledge of facts that would necessarily have to be known to appreciate the...
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Baumgartner v. American Standard INC.
... ... products-liability cases." Mignone v. Fieldcrest ... Mills , 556 A.2d 35, 41 (R.I. 1989); see Gentile v ... Vecchio , 92 R.I. 38, 41, 166 A.2d 126, 127 (1960) ... (holding that "where a risk incident to the employment ... is obvious ... ...
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Baumgartner v. Am. Standard, Inc.
...of risk remains viable in products-liability cases." Mignone v. Fieldcrest Mills, 556 A.2d 35, 41 (R.I. 1989); see Gentile v. Vecchio, 92 R.I. 38, 41, 166 A.2d 126, 127 (1960) (holding that "where a risk incident to the employment is obvious or is as apparent to the employee as to the emplo......
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Dawes v. McKenna, 10718
...of the employee and is distinct from the defense of contributory negligence. The view we thus state is supported in Gentile v. Vecchio, 92 R.I. 38, 166 A.2d 126, where we noted that where the risks of an employment are obvious and the employee undertakes to work under such conditions, he as......
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Howarth v. Gilbane Bldg. Co.
...its unreasonable character, and nonetheless voluntarily exposed himself to it. See id. at 700-01; see also Gentile v. Vecchio, 92 R.I. 38, 41-42, 166 A.2d 126, 128 (1960) (if a peril is obvious, a lack of warning will not negate the assumption of risk by the plaintiff). Notwithstanding Howa......