Constantino Herrera was hired by Norma Montero to cut a tree branch on her property that was tangled in an overhead cable. When Mr. Herrera cut the branch, it fell in an unexpected manner and caused both Mr. Herrera and his ladder to fall to the ground. As a result of the fall, Mr. Herrera sustained injuries and sued Ms. Montero and her homeowner’s insurer the matter Herrera v. United Fire & Casualty Company.
In his lawsuit, Mr. Herrera alleged that Ms. Montero failed to properly maintain the tree and failed to warn him of the dangerous condition; namely, the entanglement of the tree’s branches with the cable. Ms. Montero’s insurer filed a motion for summary judgment arguing that she could have no liability to Mr. Herrera given the fact that he was hired to rectify the same open and obvious condition (i.e. the tangled branches with the cable) that he alleged constituted the breach of the her duty to him. The trial court granted the motion for summary judgment and the Louisiana Fifth Circuit Court of Appeal affirmed.
In affirming the grant of summary judgment, the appellate court recognized that Mr. Herrera was hired to remove a branch that was visibly tangled in an overhead cable; he determined the means and methods by which he would undertake the job; and, he used his own equipment and judgment in performing the work. Ms. Montero played no part in controlling or directing his efforts. Therefore, Ms. Montero owed no duty to the tree cutter and his claims arising from the tree trimming accident were properly dismissed.
Take-Away: A person hired to correct or eliminate an open and obvious condition cannot recover from the property owner when his injury is the result of the same open and obvious condition that he was hired to fix, rather than any act or omission of the property owner.