No Duty of Care Created by Simply Giving a Thumbs Up To Proceed With Cutting Down a Tree

In the case of Miller v. Kinley, No. 22-00349 (C.P. Lyc. Co. June 18, 2024 Carlucci, J.), the court granted a Defendant summary judgment based on a finding that simply given a Plaintiff a “thumbs up” signal during the course of cutting down a tree did not create a duty of care by that Defendant when the tree that the Plaintiff was cutting fell on the Plaintiff.

In this case, the Plaintiff alleged that the Defendants had granted him permission to cut down trees on their property. The Plaintiff alleged that one Defendant, who had transported the Plaintiff to the property, agreed to assist in the removal of the trees by acting as a spotter and a safety coordinator.

The court noted that the Plaintiff failed to support this allegation with his deposition testimony.

The Defendant at issue filed a Motion for Summary Judgment. The court found that the Defendant was entitled to summary judgment because there was no genuine issue of material fact as to any duty owed by that Defendant to the Plaintiff. The court found that no reasonable jury could find that, by giving the Plaintiff a “thumbs up” signal, that Defendant assumed as duty of care to ensure that the Plaintiff safely cut down the tree and stay out of its way as it fell.

Judge Carlucci noted that, under the common law of Pennsylvania, absent a special relationship between the parties, there is no duty to control the conduct of a third party to protect another from harm.


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Source: “The Legal Intelligencer Common Pleas Case Alert” Law.com (Aug. 22, 2024).

Court Finds That Plaintiff's Claims Against College May Move Forward

 In the case of Baumbach v. Lafayette College, 2022 Pa. Super. 40 (Pa. Super. March 4, 2022 Panella, P.J. Dubow, J., and McCaffery, J.) (Op. by Dubow, J.), the court addressed whether a college owed a duty to a Plaintiff’s decedent who was struck and killed by a drunk driver while the student was walking along a roadway as she returned to the college from crew practice.

The Plaintiff alleged that the Defendant college and its agents breached a duty of care owed to the Plaintiff’s decedent and also intentionally misrepresented safety threats posed to crew members walking along the road to and from practice.

The trial court had granted the college Defendants’ Motion for Judgment on the Pleadings after finding that the Plaintiff had failed to establish that the college Defendants owed any duty to the Plaintiff’s decedent. The trial court additionally found that the Plaintiffs’ decedent did not justifiably rely upon the college Defendants’ alleged representations regarding the safety of walking or running along the roadway in question.

On appeal, the Pennsylvania Superior Court reversed both trial court findings.

With regards to the duty of care, the Superior Court noted that a party may, through his or her affirmative act, assume a duty to exercise reasonable care in the performance of the conduct. In this matter, the court stated the Plaintiff’s Complaint alleged numerous affirmative actions taken by the college with respect to the safety of the college students at the crew practice facility. As such, the Pennsylvania Superior Court found that the Plaintiffs had alleged sufficient facts to establish a prima facie case that the college Defendants undertook to act for the Plaintiffs’ decedent’s safety.

The Superior Court also ruled that the Plaintiffs also alleged numerous facts to support their intentional misrepresentation claim. 

For example, the court noted that the Plaintiff had alleged that the coaches had misrepresented that the roadway was safe for the team members’ use as pedestrians, while also periodically advising team members to run single-file and to keep an eye out for cars. The Plaintiffs had alleged that the coaches made these representations either knowing that the statements were false or without adequate knowledge about the safety conditions along the roadway while allegedly professing to have such knowledge. 

The Plaintiffs additionally asserted that the coaches knew that there had been a prior fatal pedestrian accident on the same roadway of the vicinity of the boat house the summer before the Plaintiff’s decedent had enrolled at Lafayette College. 

For these reasons, and other reasons, the court found that the Plaintiff’s allegations that the college Defendants’ alleged intentional misrepresentations were properly stated by the Plaintiff to establish a sufficient prima facie claim that the decedent had justifiably relied upon the college Defendants’ representations regarding the safety of the roadway.

Anyone wishing to review a copy of this decision may click this LINK.

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No Duty of Care Found on Service Companies Where Tree Limb Fell and Injured Plaintiff

In the case of Matthews v. Prospect Crozer, LLC, No. 355 EDA 2020 (Pa. Super. Nov. 23, 2020 Dubow, J., Lazarus, J., Ford Elliott, P..J.E.) (Op. by Dubow, J.), the court affirmed a trial court dismissal of the Plaintiff’s negligence claims against certain Defendants where there was no evidence that those Defendants undertook an ongoing duty to perform inspections and maintenance of trees on the property in a case where a tree limb fell and injured the Plaintiff. 

According to the Opinion, the Defendant landowner had a contract with the landscaping company and a snow removal company to periodically do work on the premises as needed. 

According to what the court termed as "hypothetical evidence" generated during the course of discovery, the landscaping Defendant and the snow removal Defendant generally noted that they would have notified the property owner if either noticed an issue with the trees on the property. 

The landscaping Defendant also noted it had occasionally performed tree-related work years prior to the incident. 

It was also generally and hypothetically noted during the course of discovery that the property owner expected both companies to inspect and maintain trees on the property as of the time of the Plaintiff’s incident.

The Superior Court affirmed the trial court’s entry of summary judgment after finding that the testimonial evidence cited by the Plaintiff in the record was hypothetical in nature and, therefore, insufficient to support any argument that the landscaping company or the snow removal company undertook a duty to inspect and maintain the trees on the property.

The court also noted that the fact that the landscaping company had occasionally performed tree-related work years before the subject incident was also insufficient to establish that the landscaping company had gratuitously agreed to inspect and maintain the trees.

The court also noted that the property owner’s stated alleged expectation that the Defendant companies would have maintained the trees was also insufficient to impose a duty upon the landscaping company and the snow removal company in the absence of any evidence that they actually undertook that duty.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 8, 2020).

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