The defendant, a certified arborist and co-owner of a full scale tree care and removal company, was a long-time family friend of the decedent’s. He had formerly agreed that he would come to the decedent’s home on a Sunday and remove a large pine tree for a cost of $1,000. No estimate, contract or other documentary proof of this arrangement was created, however.
On Sunday, January 2, 2011, the defendant presented to the decedent’s home in order to remove the tree from the premises. The defendant arrived at the decedent’s home in possession of company equipment which included, but was not limited to, multiple chain saws, a commercial wood chipping machine and other related equipment. Despite the aforementioned and indisputable agreement between the parties, the fee was never paid due to the intervening accident.
The defendant climbed the tree and began removing limbs with the use of a chainsaw. The decedent, (who declined the defendant’s offer to borrow and wear a hard hat but who did wear noise cancelling earphones), personally participated by removing the cut limbs and placing them in an operational wood chipper. After denuding the tree of all limbs, the defendant attempted one final cut from the very top of the formidable tree itself. The decedent, (seeing that all of the limbs had been removed and thus presuming that all cuts had been completed), wandered underneath the tree and was struck in the head with a wedge of wood described as roughly the size of a watermelon. The decedent was originally knocked unconscious but amazingly awoke and staggered to his feet. EMT’s were called to the scene and attempted to revive the decedent who had soon became unconscious again. Once admitted to the hospital, the decedent was placed on a ventilator but unfortunately expired later that night. He was 65 years old and retired.
The arborist company initially denied coverage stating that the transaction between the decedent and the company employee was a personal rather than corporate one. In support, the company cited the fact that no corporate documents were utilized or exchanged nor was money paid or received. Moreover, they noted that the work was performed on a Sunday, (a day when the company would ordinarily refrain from conducting business). Finally, the company asserted that they would not ordinarily allow a consumer to assist, even in a modest way, in removing tree branches that were cut away. The fact that the decedent was allowed to participate in removing branches that had been cut away was further evidence of the close personal relationship that existed between the decedent and the arborist who admittedly were friends.
The plaintiff countered by stressing that company equipment was used to remove the tree and that the company website touted “…we have the tools, knowledge and experience to conquer these [tree removal] tasks safely, efficiently and economically, while reducing any impact to your landscape.” The plaintiff asserted that a fair analysis demanded the conclusion that the company arborist (1) while using company equipment and, (2) plying his trade as an owner/operator of the company (3) for a negotiated fee, created a scenario whereby the company’s insurance coverage should apply.