As any remaining snow thaws and April showers slowly make their seasonal retreat, a drive on the weekend in any neighborhood often captures the sights of many homeowners tending to their property. Whether it is putting grass seeds on the lawn, tending to vegetable gardens, or raking mulch, lots of yard activities can be accomplished at this time of year. With the surge of physical activities on property, so too is the surge of possible legal consequences in the pursuit of those, sometimes dangerous, activities.
On December 2, 2009, Jose Bonano was performing yard work at a friend’s house where he was utilizing equipment to aid him in that quest. Across the street, Dean Koz was surveying a tree on his property and determined that he needed to cut a rather large branch. The branch was described as being five inches wide and at least ten feet long, incapable of being cut while a person stood on the ground. Dean Koz went across the street and asked Mr. Bonano for his assistance in his efforts. In exchange for helping him cut the tree branch, Mr. Koz offered to help with the removal of all the brush and clippings that Mr. Bonano had stacked on the property of his friend.
Mr. Koz, the Defendant, set up the ladder on the ground under the branch. Mr. Bonano, the Plaintiff, climbed the ladder and severed the branch from the tree. As the tree branch fell to the ground it bounced back and struck the Plaintiff. This is often times in landscaping referred to as a “kick-back.” The Plaintiff fell from the ladder, hit the ground, and sustained a wrist fracture and a right arm radius fracture. He was scarred and left with decreased function in his hand and incurred significant monetary damages.
The Plaintiff brought suit against the Defendant homeowner for various causes of action, including negligence. During court proceedings, the Judge found in favor of the Defendant homeowner under the theory that the risk of a kick-back was “open and obvious.” As such, it was not necessary for the Defendant to give a Plaintiff a warning for a danger he should have been aware of had he exercised reasonable due diligence and care.
The Plaintiff appealed the ruling of the Superior Court judge. In an unpublished opinion written by the Appeals Court of Massachusetts on April 23, 2014, the Court reversed and held:
“We cannot say that it is within common knowledge that a falling branch may have physical characteristics such that in its particular physical setting it may, if cut, bounce with sufficient force and in the direction necessary to cause injury to the individual who has cut it. In this case, for example, defendant Kos himself seemed to have concluded that the branch at issue presented such a risk only after twice examining its situation. Consequently, we think it is a question best left with the jury whether the open and obvious nature of the risk negated any duty on the part of Kos, who was himself aware of the danger, to warn the plaintiff.”
As such, the Plaintiff may now pursue and litigate his causes of action on their merits. The jury will ultimately decide whether or not a branch bouncing back is an open and obvious danger or if the Plaintiff should have received a warning from the Defendant homeowner who testified that cutting the branch was not safe.
To read more on this case, please read Jose Bonano v. Jeanne Pellerin-Kos, which was decided on April 15, 2014 You can access this case on the Supreme Judicial Court of Massachusetts’ website by clicking here and searching for unpublished decisions. Please check out the portion of our site dedicated to premises liability. If you or a family member have been injured on the property of another, our office can help you pursue your claim. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.