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White v. Asplundh Tree Expert Co.12/10/2004
ruling is that the trial court either decided or assumed that Asplundh owed Dr. White a duty of care, and then concluded that Asplundh was entitled to summary judgment because any duty it owed had been satisfied. While it would be proper for the trial court to determine whether Asplundh owed Dr. White a duty of care under the circumstances, see Paquette, 117 N.H. at 834, it was error, on the record in this case, for the trial court to grant summary judgment on the basis that Asplundh satisfied any such duty. That issue should have been left to the jury.
The record contains a number of items relevant to this appeal: (1) copies of witness statements to the police from John King, Dennis Aldrich and Nicholas Bishop, the Asplundh work crew at the scene of the accident on November 29, 2001; (2) written statements that King and Aldrich prepared after the accident; (3) excerpts of King's deposition; (4) excerpts from Carol White's deposition; (5) an affidavit of Dr. White; (6) excerpts from Dr. White's deposition; (7) portions of Asplundh's Foreman's Manual (manual); and (8) portions of the American National Standard for Aboricultural Operations - Pruning, Repairing, Maintaining, and Removing Trees, and Cutting Brush - Safety Requirements (ANS).
During her deposition, Mrs. White stated that she and her husband left their home at approximately 9:40 on the morning of the accident to visit their daughter. After they returned around noon, Dr. White remained inside for approximately thirty minutes. According to John King, however, he observed Dr. White walking in Asplundh's work area at approximately 10:30 on the morning of the accident and instructed him to leave. King reported that thirty minutes later he observed Dr. White in the work area once again, and approximately twenty minutes after that, saw Dr. White in the work area yet a third time, when the accident occurred.
In both his affidavit and deposition, Dr. White said that he had no memory of the events that occurred on the afternoon of November 29 after he worked on his computer and left his home, up to the point when he regained consciousness after the accident. Dr. White did not specify what time he left his house after returning home from his morning visit with his daughter. However, during his deposition, he denied approaching Asplundh's work area on the day of the accident and being told, several times, that he had to leave.
The Asplundh manual, which is part of the record, requires that audible warnings be given before a crew starts an undercut or notch, before it begins a back cut or finish cut, and just prior to the time a tree starts to fall. Similarly, the ANS provides, in relevant part:
Before commencing the back cut, there shall be a command such as "stand clear" from the arborist operating the chain saw and a response such as "all clear" from the workers supporting the removal operation. Pre-arranged, two-way hand signals may also be used.
Aldrich, who cut the tree that struck Dr. White, did not report in his statements that he gave audible warnings or that he used pre-arranged, two-way hand signals before making cuts in the tree. Indeed, Aldrich stated only that after making his first two cuts in the tree, he "walked up the bank to see if it was all clear" and, after ascertaining that it was, began making the back cut.
In its brief, Asplundh asserts that both Aldrich and King testified at their depositions that they exchanged two-way hand signals. Even assuming King and Aldrich testified at deposition as Asplundh describes, however, Aldrich's deposition was not part of the record before the trial court when it granted Asplundh's motion for summary judgment, and the e
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