Wirtz v. Gillogly

216 P.3d 416 (2009)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Dennis (D) asked P to help with a tree-felling project on Dennis's father's (D) Longview property to prevent interference with nearby cable television lines. P agreed and neither requested nor received anything of value in exchange for his help. Dennis had experience felling trees as a seasonal firefighter for the forest service, from which he had received a tree-felling certificate. P was a rookie. Dennis offered P a hard hat, but Wirtz refused. At first, all P did was stack wood with David after Dennis cut the logs into rounds. P did not cut the wood or assist in felling the trees. Dennis asked P to help him fell a tree to avoid hitting the lines. David and Dennis set a cable around the tree's trunk to ensure that it would fall uphill. The cable was secured using a “come along ratchet” to tighten the lines so they would not drag. P was to operate the ratchet to keep the cable lines taut. P was offered a hard hat and P knew that he had to get out of the way as the tree was going to fall on him. The tree's trunk split. Everyone stopped worked and decided how to proceed. P and Dennis resumed felling the tree. The tree split from the point where Dennis had applied the chainsaw; the splitting tree broke at the cable line. P tried to move out of the way, but the broken part of the tree hit him in the head. P was unconscious. and bleeding from one ear. P woke up and was taken to the hospital. P sued Ds claiming negligence. The evidence came out that Dennis had asked him to wear a hard hat, but P had refused because “we were just stacking wood.” P testified that he had watched Dennis fell three trees and he had observed that they came down with great force. P did not think about asking Dennis for a hard hat when P began participating in the tree felling several days later. On the day P felled trees, Dennis offered P a hard hat, but P again declined the offer. Ds moved for summary It was granted because P assumed the risk. P appealed.