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Worker Hurt Doing Jobs Requested by Tenant:

Was Absentee Owner Liable For The Injury?

A residential tenant signs a lease with an owner who holds the title for investment purposes. The tenant engages a handyman to prune a tree on the property. The worker is injured and sues the out-of-possession landlord. Did the handyman assert a legally cognizable claim?

The accident took place on March 24, 2018 in the backyard of 340 Halsey Street in Brooklyn, New York. The two-family house was owned by Advance Financial Realty Corp. for investment purposes. The duplex on the first and second floors, with exclusive use of the backyard, were rented to a residential tenant and his wife, James and Kimberly Nester. Kimberly Nester asked Wilson Loja to come to her home to prune a tree in the backyard. James Nester testified that Loja agreed to do the work without payment, and that he did not obtain permission for the work from Advance, nor did he inform Advance about having the work done.

Loja came to prune the tree, and after he had finished and while he was cutting up the branches so they could be tied together and put out with the trash, he claimed he either tripped over loose “tree material” or “lost his footing” in an indentation, which caused him to somehow lose his balance and cut his hand with the saw blade of the power tool he was using.

Loja sued Advance but not the Nesters, who had engaged him to prune the tree. The complaint included two causes of action, one which cited no statutes but stated that Advance failed to provide him with a safe and proper place to work, and the other for common law negligence. The complaint alleged that Advance engaged his employer, WRP LLC, to do the work. Loja’s bill of particulars elaborated on the first cause of action and cited Labor Law Sections 200, 240(1) and 241(6) as being applicable to this accident. And claimed that Advance had actual and/or constructive notice of the “hazardous premises condition.”

Advance moved to dismiss the complaint and supported the motion with the pleadings and the deposition transcripts of Loja, Advance, and James Nestor, together with an affidavit from an engineer and some photographs. Advance alleged that there were no hazardous premises conditions, it was not negligent, and it did not direct or control the work that Loja performed.

Loja opposed the motion only with regard to his negligence claim. He did not oppose dismissal of his Labor Law claims, and at virtual oral argument his attorney withdrew those claims to the extent they were asserted in his complaint. In any event, the Labor Law was inapplicable because Loja did not trim the tree in connection with a construction project going on at the premises. Additionally, a “volunteer” could not make a claim under the Labor Law which implicated the disputed testimony about payment.

James Nester testified that he moved into the premises in 2013, initially as a roommate of another tenant who leased the first and second floor duplex apartment, and he became a direct tenant with the owner in 2014. He then sublet to various people. He understood that the owner was a man named Leo Roland. He paid his rent directly to him by Venmo. He had never heard of the business name of Advance.

Nester married in 2018 and his wife moved in. Roland did not come to the property “unless there was an emergency.” There was no superintendent. The tenants took care of the garbage. He had thrown out all the tenants except the current one. He did not know who shoveled the snow. Nester had been employed by a landscaping and lawn maintenance company in Pennsylvania for four or five years and was experienced in landscaping, tree trimming, and gardening.

In 2014 “[he] asked [Roland] if he would be okay if I could fix the backyard up. I told him I had experience in landscaping, that I liked to do it as a hobby, and he gave me his permission.” Nester then fixed up the yard. He mowed the grass and planted the plants, which was his hobby and he said he enjoyed having a nice backyard. The owner never sent anyone to do any yard maintenance in the backyard. Nester owned an electric mower, a weed whacker, an electric leaf blower, a clipper, and a pole saw for his yard maintenance, which he kept in the cellar.

Mr. Nester testified that there were two trees in the backyard. He never asked Roland for permission to prune them. In 2016, two years before Loja’s accident, one of the trees was completely cut down by a company Roland hired after an adjacent property owner complained that it was leaning against her fence and causing the fence to crack, and it seemed that it would fall into her yard if there was a storm. Nester located and recommended a company, obtained an estimate, and Roland okayed the job. He then let the company in. Nester testified that Roland told them to leave the branches and the sections of the trunk in the yard after they were cut into small pieces. He did not know why Roland did not tell them to remove the pieces—most of which was still in the corner of the yard on the date of Loja’s accident. Roland never came into the backyard while Nester was a tenant, but he had seen the yard from a window and told him that it looked “nice.”

In March of 2018, including March 24, 2018, the date of Loja’s accident, Nester testified that the pieces of the trunk and the branches that had been removed were still in the backyard from the 2016 work. The trunk sections were in the back rear, and the branch pieces were in a “nice pile,” also in the rear, on the right side of the yard. When Loja came, he was there to let him in. He had never met him before, but “knew of him” through his wife, as she knew him through her friends.

Loja was contacted to come to the property to trim the branches on the tree that remained in the backyard. He did not want to do the work himself as it required power tools and a ladder. His wife, Kimberly Nester, “asked him if he would help us out and do us a favor with trimming some branches.” He did not obtain a business card or determine Loja’s credentials, and did not discuss payment, as “it was a favor” and he “had no intention of paying Wilson at all.” When asked if he had discussed having this work done with Advance, Nester said “no.” Nester spoke to Loja in English.

Loja testified on three days with the assistance of a Spanish interpreter. He had a full time job at the time of the accident. He worked for a property management company and his work included “paint, place sheetrock, change kitchen furniture, change kitchen floors, sand wooden floors, some plumbing, some electric.” Loja came to the United States from Ecuador about twenty years ago. He had lived in several northeast states and had several different kinds of jobs. He took side jobs painting, installing doors, windows, and cabinets. Loja used the company name WRP LLC for his side jobs. His employer “opened up” this company for him. He was asked many questions about his experience over the last thirty years with different types of power tools.

Loja did not own the grinder he used on the date of his accident. It was owned by his brother-in-law Rene. Asked what safety warnings he had been given when he was trained in the use of this tool, he said, “at the place that I’m going to do the job, I have to keep the area clean, the area where I work. Make sure that the connection cord is in optimum condition, make sure that the blade is well-locked… use goggles… keep your hands away from the machine.”

He brought the grinder to the deposition. He had borrowed it from Rene twice before. It did not have a safety guard. He had pruned a tree only once before the date of this accident. On that occasion, he used a hand saw, specifically a pole saw. Loja had never used a grinder to perform “tree cutting or tree pruning.” He had not read the user manual for this tool. He did not use goggles on the date of the accident. After the accident, he went to the hospital. He and his brother went back to the house afterwards, and he collected the grinder and his $200 payment for the job. He kept the grinder in his possession since then.

Loja said he “went by the owner of the house” but was referring to James Nester. He said he was not a volunteer, it was a job, and James Nester’s wife Kimberly contacted him at the office where he worked at the time. She worked there too, as a secretary. She told him the tree caused too much shade and needed some branches cut. He testified that the “owner” wanted the work done, but the name of the owner was not mentioned. He asked for a photo of the tree, and she texted him one. He said he told her that he would do the job for $200 after he saw the photo. There was no written agreement. He told her on Friday that he would come on Saturday.

Nester arrived at 10:00 a.m. He had called Kimberly Nester on her cell phone to estimate his time of arrival. She said her husband was waiting for him outside. He brought the grinder and a hand saw to the house, along with a 20-foot extension cord for the grinder. The grinder had been in his car since the last time he had borrowed it. He did not bring any goggles or gloves. This was a “side job” and not for his boss.

James Nester brought him to the backyard. He continued to refer to Mr. Nester as the “owner.” He said that “the owner told me that I had to cut the longer branches.” Then, when asked, he said “James” was who he was referring to. Then, he said he knew James was not the owner, and he had never spoken to the owner. James told him to leave all the tree pieces and rocks that were already there-that he did not need to clean that up. James brought out a ladder and a pole saw. Loja climbed from the ladder into the tree and cut the branches with the pole saw James Nester provided, while Nester cut the smaller, thinner branches. He was up in the tree for about an hour and a half. The branches they cut fell to the ground, where they remained while they worked.

When he was done, Loja jumped down from the tree. He next needed to cut the branches that had been removed into smaller pieces. A few minutes after he started, using the grinder that he had brought with him, while standing among the branches that had fallen, his accident took place. He testified that he did not move the branch away from the tree to a flat location, which was, according to the photos, adjacent to the area where he had been working, because “I was not going to be moving branches from one side to the other if you could cut it at the same place.” He described the area as a “mess,” with pieces of wood, rocks, leaves, holes, and pieces of concrete. Asked why he did not use the hand saw he had brought with him, he answered “the teeth of the hand saw were deteriorated.”

Loja was then standing in the mess, not holding the branch he was cutting, but “free-handing” with the grinder while his left hand “was free.” In sum, he was using a grinder which had no guard on it, one that he testified he had not read the instruction booklet for, without gloves or goggles, not standing on a flat surface, and not holding the branch he was cutting. This was not the proper use of the tool. He also testified that he had never used a grinder to cut a tree branch before that day.

Loja testified that when his accident happened he was cutting the small branches off of a branch that was two inches in diameter. He stated, “the branch fell exactly on top of all of those old branches that you see in the back of the yard.” Asked for more specific information, he said the old wood that had been piled up was 4 to 5 feet wide by 6 feet, or approximately 30 square feet, and it was “approximately 6 feet high.” None of the photos showed anything of that nature. He said the branches he cut fell on top of this “pile” and he apparently was standing in this “mess” as he described it, free-handing with a grinder (a power saw) that had no guard.

He tried to describe that the yard was “sloped” and that one end of the branch he was cutting was 4 inches off the ground. He then said that at the time he was working, he was standing “on the slope, on top of it. The upper part” and “I was facing the wood pile” and “standing one foot from it.” Loja placed his right foot “on top of some rocks” and his left foot “on some rocks” with his left foot about four inches higher than his right foot. He was first going to cut the little branches off the main branch that were about a half inch thick. James was “organizing the branches” and using his pole saw and clippers at the time to cut the fallen branches into smaller pieces.

Loja described the accident as follows:

“My feet were basically moving on rocks and old wood and garbage. You could also see a separation between the rocks. They were like holes, but there were dry leaves covering all of this debris. At that time, my right foot, the tip of my right foot got inside a hole. Immediately, my body went forward. My left foot moved forward to look for some balance, and I tripped over old wood, over old branches. With that movement, my right hand was holding the machine, and my left hand touches the tip of the blade. That’s how the accident happened.”

Loja did not fall, but in the course of balancing himself, he cut his left hand. When he left the emergency room, he and his brother took a taxi to James Nester’s home to get his car, which he had left there. He spoke to Nester and was given his grinder and $200. Nester told him that the “owner” had left the $200 for him.

Leo Roland testified for Advance. Roland purchased the property in 2007 and transferred it to a corporation in 2017. He acknowledged that the Nesters were his tenants at the time of Loja’s accident pursuant to a residential lease. He learned of the accident when he was served with the summons and complaint. He then contacted James Nester for details. He had “absolutely not” asked James Nester to hire someone to trim the tree. He had never told anyone he would pay $200 for tree trimming. Roland said that if James Nester had hired someone without his permission it “would go against the lease”.

Roland said there may have been a small tree on the right side of the yard as you look out of the windows, but the larger tree was on the left. The large tree was pruned, not cut down entirely, in 2016, and was leaning on the neighbor’s fence. It was that neighbor who had complained, not the ones on either side. James Nester gave him the name and phone number of a tree company whose truck he had seen parked on the street. He did not think the small tree on the right side was there anymore, but he was not sure. And could not remember the name of the company, nor did he have a receipt.

With regard to the detritus from the 2016 pruning work, Roland testified as follows:

“James, my tenant, had asked me if I would leave the tree branches in the back for his own exclusive doing. You know, like he did some landscaping. He wanted to use the tree branches for a portable fire pit kind of thing, those Home Depot things. So, I didn’t see an issue with that. He also used some of the tree trunks and made seats, chairs out of them.”

Asked if he would be surprised to learn that James Nester testified that it was Roland’s idea to leave the branches in the yard and not have them removed, he said “yeah” and “I had no use for the branches, so there was no need for me to leave them in the yard.”

Asked about James Nester’s work in the backyard, Roland said:

“James, he’s been with me for seven years, I had James call me and he said, ‘is it okay for me to plant tomatoes in the backyard?’ You know, I understand he’s a landscaper in his prior life, I guess. He enjoys working in his yard for his own exclusive benefits, but it doesn’t affect me in any way, so. He’s been a long-term tenant.” And asked if there was any written communication with Nestor about the backyard, he said “no.”

Roland testified that the Nesters had exclusive access to the backyard from their duplex apartment and he verbally approved the fire pit and had seen it in the middle of the yard. He also approved the installation of a pond. He said that other than installing a walkway of brick in the yard shortly after he bought the property in 2007, which did not extend all the way to the back of the yard, the tree pruner he hired in 2016 was the only company he had hired to work in the backyard prior to Loja’s accident. He confirmed James Nester’s statement that he had not been in the backyard during the Nesters’ tenancy and had only seen it by looking out the window.

Shown photos of the yard, Roland testified that the area under the tree was higher than the grassy area in the middle of the yard, and that before he purchased the house, somebody “was probably doing something back there and they never finished it and they just left it.” There were cinderblocks in the rear of the yard which someone, not him, had covered with dirt before he bought the property.

George H. Pfreundschuh, P.E. provided an expert’s affidavit in support of Advance’s motion. He inspected the grinder, inspected the backyard on August 10, 2020, and took photos. He measured the backyard, and it was twenty feet wide and fifty feet deep. The Court found that there was nothing in the affidavit that was helpful with regard to the cause of action for negligence in the motion for summary judgment.

Advance argued that the negligence claims should be dismissed in that Advance was not negligent, did not direct or control the work Loja was performing, and there was no defective condition on the premises which caused or contributed to the accident. Advance noted that Loja admitted that the sloped area was not a proper place to do the work, and that there were other areas in the yard that were flat and clear. When asked why he did not move the branch to another part of the yard, Loja answered that, although it would have been possible to move it, it was easier to cut it where the branch had fallen. As he was preparing to cut a branch, Loja lost his footing on a hole in the ground and cut his hand.

Loja argued that he tripped and fell due to a combination of hazardous conditions, which included a hole between rocks, uneven ground covered in debris, and old branches left in the yard for two years. Advance had directed that the old branches be left in the yard. In addition, there had been other work performed at the rear of the yard which resulted in scattered rocks and broken concrete on a sloped area under the tree on which he later worked. As owner of the premises, Advance was responsible for the hazardous conditions which existed there on the date of the accident. In failing to clear old debris from the uneven ground and maintain the pile of old branches, Advance negligently created the hazardous conditions which caused and/or contributed to Loja tripping and falling. It was beyond dispute that Advance had actual notice of the hazardous conditions which were involved in the accident.

In order to prevail on the motion for summary judgment dismissing the complaint, Advance was required to demonstrate that either there was no condition that was inherently dangerous which caused Loja to have an accident or, if there was such a condition, that Advance did not create or have actual or constructive notice of the condition with sufficient time to remedy it.

The Court found that Advance made a prima facie case. Loja was not hired by Advance, the property owner. He was asked to prune a tree either for $200 or as a favor to Kimberly Nester, who knew him prior to his accident. There was no evidence that the backyard was not in a reasonably safe condition for use by its tenants as a backyard. The Nesters made no complaints to the landlord about any conditions in the backyard which needed to be repaired or corrected. While James Nester said the owner wanted the 2016 tree debris to remain in the backyard, Roland testified that it was James Nester who wanted the branches to remain so he could burn them in his fire pit. The pieces of wood that were in the rear corner of the yard from the 2016 tree work did not cause the accident. The accident was caused by Loja’s own negligence.

A defendant is not required to protect a plaintiff from his own folly. While proximate cause is generally an issue for the trier of fact, it may be decided as a matter of law where only one conclusion may be drawn from the established facts. Summary judgment is warranted when the sole proximate cause of the accident was the plaintiff’s own conduct. A defendant will be relieved of liability where a superseding cause interrupts the causal chain of connection between the injuries and the defendant’s negligence, including the plaintiff’s own conduct.

The Court concluded that, to the extent Loja’s claimed there was tree debris that he tripped over, he either created the debris himself or, if it was there previously, he should have moved the 4-foot long branch he was cutting up to a place in the yard that was level. He testified that he was trained not to use a power tool unless the surface was level. Thus, he knew he should not have been working under the tree, as he knew the ground under it was sloped. He should have been wearing safety gloves. His grinder should have had a guard.

Further, Loja’s testimony that he tripped while “under the tree” was contradicted by his testimony that, with the extension cord, the grinder had twenty-eight feet of cord from the outlet on the back of the building. The engineer measured the yard as fifty feet deep, and all of the testimony was that the tree was near the rear fence, at least forty feet from the rear wall of the building.

Loja’s claim that he was caused to fall as a result of a dangerous premises condition was unsupported by the facts. The injury to his hand was caused by Loja’s own negligence. While perhaps there were some twigs and rocks in the backyard before he arrived, there would be a transient condition which the property owner established that he had no actual or constructive notice of, and the tree debris was not a hazardous premises condition.

A landowner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all the circumstances. However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, was not inherently dangerous. Landowners are not obligated to warn against conditions on the land that could be readily observed by the use of one’s senses. Landowners will not be held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated. Even crediting Loja with his version of the facts-that he had two extension cords connected together which reached all the way to the tree- to the extent there was a slope under the tree because of buried cinderblocks covered by dirt, there was no evidence that the sloping area was unsafe or hazardous before Loja dropped cut branches under the tree and then stood in the middle of the pile of branches to free-hand with a grinder (power saw) which had no guard.

Advance’s motion for summary judgment dismissing Loja’s complaint was granted.

 

 

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