Smoot v. Vanderford, 19604
| Decision Date | 22 February 1995 |
| Docket Number | No. 19604,19604 |
| Citation | 895 S.W.2d 233 |
| Parties | Gregory S. SMOOT, Respondent, v. Jimmy D. VANDERFORD and Darlene Vanderford, Appellants. |
| Court | Missouri Court of Appeals |
M. Sean McGinnis, Kenneth H. Reid, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, for appellants.
Bert V. Twibell, John H. Kizer, Twibell, Greene, Johnson & Kizer, Springfield, for respondent.
Gregory S. Smoot ("Gregory") 1 was injured when he fell while using an extension ladder and a chain saw to cut a limb from a tree at the home of his employers, Jimmy D. Vanderford ("Jimmy") and Darlene Vanderford ("Darlene").
Gregory sued the Vanderfords. A jury assessed these percentages of fault:
Jimmy, 30 percent
Darlene, 30 percent
Gregory, 40 percent
The jury, disregarding Gregory's fault, assessed his damages at $150,000. The trial court reduced that amount by Gregory's percentage of fault and entered judgment for Gregory against the Vanderfords for $90,000 plus prejudgment interest per § 408.040.2, RSMo Supp.1987.
The Vanderfords appeal, maintaining the trial court erred in denying their motion for a directed verdict 2 and in giving certain instructions. In reviewing the trial court's denial of the motion for a directed verdict, we view the evidence favorably to Gregory, giving him the benefit of all reasonable inferences. Black v. Kansas City Southern Railway Co., 436 S.W.2d 19, 23 (Mo. banc 1968).
Gregory was "almost twenty-seven years old" on the date of the injury, September 4, 1991. He had worked for the Vanderfords "on and off for probably ten previous years," mowing lawns, painting their "rental property," and cleaning up vacated properties in preparation for re-renting.
Jimmy's occupation as a management consultant required him to travel during the week. Consequently, if Jimmy had tasks for Gregory, Jimmy told Gregory on weekends.
On the weekend preceding September 4, 1991, Jimmy informed Gregory by phone that one of the tasks for the upcoming week would be cutting limbs off two trees at the Vanderfords' home. Gregory went there, and Jimmy showed Gregory "specifically which limbs to cut."
Jimmy knew Gregory owned a "thirty-two foot extension ladder." Because the limbs on one tree were "somewhere in the neighborhood of twenty feet" above the ground and Jimmy's "tallest ladder" was a stepladder, Jimmy told Gregory to use the extension ladder.
The size of the limbs convinced Gregory that using a handsaw would be impractical, so he decided to use a chain saw he borrowed from his father. Jimmy conceded it was "probably true" that he knew a chain saw would be required.
Gregory arrived at the Vanderfords' home around "6:00 or 6:30" p.m., Wednesday, September 4, 1991, unloaded his ladder from his truck, and put gasoline and oil in the chain saw. As he did so, Darlene came outside and engaged in conversation with a next door neighbor, Mike Williams.
Using his ladder, Gregory climbed to the roof of the Vanderfords' garage and, standing on the roof, used the chain saw to cut three branches from a nearby tree that overhung the garage. Another limb was growing toward Williams' garage. Darlene asked Williams if he wanted it removed. He said yes, so Darlene asked Gregory to remove it.
This time, Gregory placed his ladder on the target limb, ascended the ladder, and cut off the offending part of the limb with the chain saw. Asked whether Darlene was still there, Gregory answered, "I think she left before I started cutting his limb."
Gregory recounted that he then carried his ladder to a tree in the Vanderfords' back yard, pushed the extension section "up as high I could push it," and placed the ladder against one of the limbs he was to trim. He positioned the ladder so the tree trunk was to his left and the part of the limb he intended to remove was to his right.
Gregory conceded the ladder was "not fully extended" and could have been lengthened by moving the extension section farther up the base section. Nonetheless, avowed Gregory, the top of the ladder was at least a foot above the limb on which the ladder was propped.
Gregory ascended the ladder until he was "eye level" with its top. Using the chain saw, he cut off the portion of the limb to the right of the ladder with "no difficulty."
Gregory then moved the ladder to the second limb which, like the first, was some twenty feet above the ground. He again propped the ladder against the limb, with the tree trunk on his left and the portion of the limb to be removed on his right. He ascended the ladder and began cutting the limb about a foot to the right of the right edge of the ladder. This time, the limb broke but remained "hanging." He then cut the limb "the rest of the way." As the severed part fell, Gregory began "falling forward with the ladder."
Asked at trial why he fell, Gregory surmised that the segment of the limb on which he propped the ladder sprang upward over the top of the ladder upon being freed of the weight of the severed "heavy end portion."
Gregory's assumption was confirmed by Williams, who gave this account:
"[W]hen he cut that branch, the branch, when it released that particular part of the limb there, went flying up and went over the top of the ladder, and the ladder basically spun around from the right-hand side, and he ... more or less jumped off, but he was thrown off the ladder ... and then came down screaming and ... the ladder was coming down and the chain saw was flying...."
No one else was present when Gregory fell, and no other explanation appears in the record.
As Gregory was falling, the chain saw was still running. Fearful of landing on it, he threw it aside. He landed "feet first" to the right of the ladder and felt instantaneous pain go up his legs. He continued forward and rolled over.
Both heel bones were broken into "several pieces." The Vanderfords do not question the jury's assessment of damages, hence we need not detail the physical and financial consequences of the injuries.
Gregory tendered a verdict-directing instruction against Jimmy, and the trial court gave it (over Jimmy's objection) as Instruction 7. It read:
Gregory tendered a verdict-directing instruction against Darlene identical to Instruction 7 except that Darlene's name was substituted for Jimmy's. Over Darlene's objection, the trial court gave the verdict-directing instruction against her as Instruction 8.
The first of the Vanderfords' three points relied on asserts the trial court's denial of their motion for a directed verdict was error in that the evidence did not make a submissible case of failure to warn a business invitee 3 of a dangerous condition on the Vanderfords' premises. The Vanderfords maintain the "condition" was open and obvious as a matter of law, thus their conduct did not fail to meet the required standard.
Consideration of the point must begin by identifying the "condition" referred to in paragraph "Third" of Instructions 7 and 8. The only "condition" described in those instructions was Gregory's inexperience in "trimming tree limbs with a chain saw from an extension ladder."
We infer Gregory's theory of liability was that the Vanderfords, knowing he was inexperienced in that method of trimming trees, subjected him to an unreasonable risk of harm by directing him to use that method to trim the trees on their premises and, having exposed him to such risk, were negligent in failing to warn him about it.
Gregory's brief appears to confirm our inference. It states:
In their answer to Gregory's petition, the Vanderfords admitted Gregory was inexperienced in being on an extension ladder and using a chain saw to trim trees, was unfamiliar with the "proper, usual and safe methods of doing said work," and was unaware of the dangers attendant to such an undertaking. At trial, the Vanderfords argued this was not an admission that they knew of Gregory's inexperience when the task was assigned. However, when asked whether he recalled any occasions on which Gregory had trimmed tree limbs prior to the accident, Jimmy testified, "There might have been some pruning from ground level, but ... just clippers, pruners, that kind of thing." Jimmy and Darlene conceded that using a chain saw and an extension ladder to trim trees is dangerous.
Viewed favorably to Gregory, there was sufficient evidence to support the hypothesis in paragraph "First" of Instructions 7 and 8 that the Vanderfords knew or should have known that Gregory was inexperienced in "trimming tree limbs with a chain saw from an extension ladder."...
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