Strayer v. Cox
| Decision Date | 10 July 2015 |
| Docket Number | No. 2015–CA–6.,2015–CA–6. |
| Citation | 38 N.E.3d 1162 |
| Parties | Richard STRAYER, et al., Plaintiff–Appellant v. Anthony COX, et al., Defendants–Appellees. |
| Court | Ohio Court of Appeals |
Grant D. Kerber, Troy, OH, for plaintiff-appellant.
Gordon D. Arnold, Patrick J. Janis, Dayton, OH, for defendants-appellees.
Todd Smith, Dublin, OH, for defendant-appellee—United Healthcare Services, Inc.
WELBAUM
, J.
{¶ 1} In this personal injury action, Plaintiff–Appellant, Richard Strayer, appeals from a summary judgment rendered on behalf of Defendants–Appellees, Anthony Cox, Heather Cox, and Auto Owners Insurance Company (collectively, “Appellees”). In support of his appeal, Strayer contends that Appellees failed to produce competent summary judgment evidence, and that their motion for summary judgment should have been denied as a matter of law.
{¶ 2} We conclude that the trial court did not err in rendering summary judgment in favor of Appellees. The undisputed facts indicate that Anthony Cox had no duty to protect Richard Strayer from an open and obvious hazard on Cox's property. Furthermore, Anthony Cox did not owe Strayer any duty under an exception to a property owner's general lack of duty to an employee of an independent contractor. Specifically, Cox did not “actively participate” as required for application of this exception by directing the activity that resulted in Strayer's injury, by giving or denying permission for the critical acts that led to Strayer's injury, or by exercising sole exclusive control over a critical variable in the working environment. Accordingly, the judgment of the trial court will be affirmed.
{¶ 3} In June 2012, Richard Strayer was injured while attempting to cut down a tree located on the property owned by his neighbor, Anthony Cox. Strayer had moved into the neighborhood around 2000, and Cox moved in a few years before the accident occurred. Between 1986 and 2009, when he became employed as a laborer at a quarry, Strayer had been involved in various types of residential and commercial construction. However, for about two years during this time frame, Strayer was employed climbing cell phone towers that ranged between 180 and 1,600 feet tall. In the course of this employment, Strayer wore a safety harness. Subsequently, he also worked for three years in commercial construction, where he wore a body harness. At the time, OSHA required workers to be tied off while they were six to 12 feet above the ground.
{¶ 4} For 10 or 11 years prior to the accident, Strayer had been cutting or taking down trees in order to obtain firewood for a large wood stove used to heat his whole house. Strayer obtained wood from friends, acquaintances at work, people offering to share firewood in exchange for splitting wood, or even complete strangers who had a tree that needed to be cut down. Strayer owned three chain saws and a hydraulic log-splitter.
{¶ 5} Prior to June 2012, Strayer had climbed trees 20 to 25 times to cut them down. If he could drop a tree from the ground, he would, but if he had to climb the tree to clear power lines, a building, or telephone lines, he would climb the tree, trim around it, and bring the tree down from the top down.
{¶ 6} At some point, Anthony Cox decided that he wanted to remove the tree in his front yard. At the time, the tree was about 20 to 25 feet tall. His reason was that a lot of wind came through the area, and he did not want the tree to blow over. The tree had sparse leaves on it, and he presumed it was dead. Cox called a tree trimming service and received a rough estimate over the telephone of about $1,000 for the removal. Subsequently, Cox told Strayer he wanted to take the tree down, and asked Strayer to help because he (Cox) was afraid of heights. Previously, Strayer had helped Cox put a roof on his garage, and Cox had helped Strayer with things around the house. Strayer also asked his uncle and cousin, John Goulliozet and John Goulliozet, Jr., to help with the tree removal.
{¶ 7} There was no indication that Cox had any experience with cutting down trees or using chain saws. Strayer indicated that he normally cuts down trees with another person. If the person has experience with chain saws, the person will help him cut. If the person does not have experience, the person just assists with taking the branches out after Strayer cuts them, and stacking the brush off to the side.
{¶ 8} It was decided that the tree would be cut down on Saturday, June 19, 2012. Cox and Strayer began working at around 11:00 a.m. that day, before the Goulliozets arrived. Per his usual procedure, Strayer inspected the tree before cutting it down. The condition of the tree looked okay to Strayer. There were some branches that were obviously dead. There was nothing about the tree that led Strayer to believe that the tree was diseased or damaged. According to Strayer, no one other than a tree expert would be able to tell that a branch was rotting, and Cox would have had no way to determine if there was rotting or damage to a limb. Cox also testified that he had tested a couple of branches before the tree was cut down, by bouncing on them, and found no problem.
{¶ 9} The parties used Strayer's chain saw, ladder, and rope. It was Strayer's understanding that he was going to use the saw to cut the branches, and Cox was going to provide whatever assistance he could. After looking at the tree, Strayer believed he could use a chain saw and cut down the tree. Cox and Strayer discussed which branches were coming down first. The first branches Strayer cut were lower branches and dead ones, to get them out of the way. Strayer started cutting on the east side of the house. When he cut the first branch, he was standing in the base of the tree, which was 10' to 12' above the ground. Strayer then worked his way around the tree, cutting off between five and fifteen branches. After Strayer cut off the branches, Cox pulled them away from the base of the tree.
{¶ 10} At that point, Strayer climbed out of the tree and got a rope from his own house. The rope was needed because the branch in question went over the top of Cox's house, and they needed to pull the branch away so that it would not fall and hit Cox's roof or take out his gutter. Because the ladder was not high enough, they had trouble getting the rope around the branch. As a result, they tied a wrench from Cox's house around the rope, threw it through the tree, and then pulled on the wrench to tighten the rope. After the rope was attached, Cox and Strayer talked about how Cox would take the slack out of the rope. Strayer would climb up, cut the branch, and yell at Cox to yank the rope so that the branch would not hit the house. According to Strayer's testimony, this was the appropriate way to cut down the branch. Strayer stated that he had done it many times before.
{¶ 11} Strayer then climbed back up into the tree, and was standing back in the base, where he had stood prior to all the other cutting. Just as they were ready to start, Cox's acquaintance, Mark Lynn arrived, and Cox asked him to help with the rope. Mark stood closer to Strayer and the house, and Cox was closer to the curb. Cox was facing away from the tree, and Mark was at his back, and they had a good bit of tension on the rope, to make sure as the branch came away, it did not hit the house. The only thing Strayer asked at that point was whether the rope was tight, and Cox responded that it was.
{¶ 12} Strayer's feet were in the base of the tree, and he was standing in the middle of a series of big branches or limbs. The base of the tree had a fairly good size limb coming out, and the way Strayer was standing was how he had done it in other trees. Strayer specifically stated that the place where he was trying to cut a limb was different from where the limb he was standing on broke from the tree. He was cutting in a different place from where he was standing and the limb being cut was no more than two or three inches in diameter. That limb was attached to another limb, but Strayer was not standing on the larger limb. Strayer Deposition, pp. 115–116 and 133–134. In this regard, the following exchange occurred during Strayer's deposition:
Strayer Deposition, pp. 115–116.
{¶ 13} Strayer also reiterated later that (Emphasis added.) Id. at 184. He also indicated that the tree broke “where my feet were, where I was standing * * *.” Id. at p. 133.1
{¶ 14} Strayer applied the chain saw to the limb and started cutting. He did not cut the entire limb. Strayer gave the following account of what happened:
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