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White v. Asplundh Tree Expert Co.12/10/2004
xcerpts of King's deposition that were part of the record do not contain any discussion of two-way hand signals.
The parties also contest the location of signs and cones Asplundh used on the day of the accident. Specifically, Asplundh states that its crew placed signs and cones "around work area," but the plaintiffs argue that the signs and cones were placed on Route 103 around Asplundh's truck, for traffic purposes, and were not placed in or around the area where Asplundh was trimming and felling trees.
Finally, on the record before the trial court, it is uncertain where Dr. White was the last time any of the Asplundh employees saw him prior to the accident and who among the Asplundh employees on the site last saw Dr. White before he was injured. In addition, it is not clear exactly what the Asplundh employees did to check or clear the area before felling the tree that hit Dr. White or how certain they were that Dr. White was not in their work area when Aldrich made the back cut.
Asplundh argues that the record in this case supports its contention that no reasonable person could find it liable for the plaintiffs' injuries. We disagree. Whatever the strength of the plaintiffs' claims against Asplundh, they present issues of material fact, which must be resolved by a jury.
Therefore, we hold that on this record, where the facts were not stipulated, the question of whether a duty of care was breached is for the jury to decide. Indeed, most, if not all, matters relating to the issue of breach are disputed or unresolved. Accordingly, the trial court erred in granting Asplundh's motion for summary judgment on the basis that Asplundh satisfied any duty of care it owed to Dr. White.
The trial court did not rule on the issue of whether Asplundh is immune from liability under RSA 212:34 because it found insufficient evidence upon which to do so. We agree, and therefore need not further address that issue on appeal.
Reversed and remanded.
NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.
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