Property Owner Driving Excavator/Felling Timber Hits Worker Cutting Stump

Was Equipment Operator Negligent/Liable for Causing Injury?

Garrett Hickey and another person were assisting Paul Regalbuto in felling trees on Regalbuto’s property and then cutting the timber for firewood. Regalbuto was directing the two men with regard to the work being done. Regalbuto was operating an excavator and, once a tree had been cut down, Regalbuto used the excavator to move the tree to a pile where it was then cut into firewood.

The excavator cab could rotate 360 degrees and, on at least some occasions, Regalbuto was facing in the opposite direction of the way the excavator was moving. While picking up and moving one of the felled trees, he struck Hickey with the excavator. Hickey had apparently stopped behind the excavator to cut a stump down closer to ground level. Hickey testified that Regalbuto had specifically directed him to cut the stump flush to the ground. But Regalbuto testified that he was unaware that Hickey was behind the excavator and cutting the stump. 

Hickey sued Paul Regalbuto and Mary Ann Regalbuto for negligence. After issue was joined and depositions taken, Hickey moved for summary judgment.

To make out a claim for negligence, a plaintiff must demonstrate (1) a duty owed by defendant to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. The threshold question in any negligence action is whether a defendant owed a legally recognized duty of care to plaintiff. In the absence of duty, there is no breach and without a breach there is no liability. Foreseeability and causation are issues generally and more suitably entrusted to fact finder adjudication. But the definition of the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for the Court to make prior to submitting anything to fact-finding or jury consideration.

Courts must determine whether and to whom a duty is owed taking into account common concepts of morality, logic and consideration of the social consequences of imposing the duty. A critical consideration in determining whether a duty exists is whether defendant’s relationship with either the tortfeasor or plaintiff placed defendant in the best position to protect against the risk of harm.

But Courts must also be careful not to impose a duty in all cases where some harm might result, because foreseeability of harm does not define duty. Foreseeability and duty are not identical concepts and foreseeability merely determines the scope of the duty once the duty is determined to exist. Foreseeability should not be confused with duty. Foreseeability is a limitation on duty.

Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination. Only if it can be concluded as a matter of law that defendant was negligent, may summary judgment be granted in a negligence action.

In this case, Paul Regalbuto was operating an excavator to remove timber on his property. The Court first addressed whether he owed a duty to Hickey. It may be said that the excavator operator had a duty to all or a duty to the world at large. But even if the duty was not that expansive, it was clear that the operator of an excavator owed a duty to persons known to be in close proximity to the excavator and working in concert with the operator. Thus, Regalbuto had a duty to Hickey to operate the excavator in a safe manner.

Hickey testified that he had cut down a tree and Regalbuto asked Hickey to cut the stump down flush to the ground. And while he was doing so, Regalbuto drove the excavator over Hickey’s leg. Hickey also testified that Regalbuto was looking in the opposite direction when he drove over his leg. There could be little doubt that striking a person with the excavator was a natural and foreseeable consequence of operating the excavator in that manner. Therefore, the Court found that Hickey made a prima facie case for summary judgment against Paul Regalbuto. There was no dispute that his acts were the proximate cause of Hickey’s injuries.

In opposition, Regalbuto argued that there was a question of fact precluding summary judgment against him and that Hickey had not made a prima facie case against Mary Ann Regalbuto. On the first point, the Regalbutos pointed to the testimony that Paul was unaware that Hickey had gone behind the excavator and knelt down. Although Paul admitted that he may have mentioned to Hickey that the stump should be cut lower, he did not instruct him to do it at that time. Regalbuto testified that he could not see Hickey once he had knelt down, but that Hickey was apparently in the path of the excavator. Essentially, the Regalbutos claimed that the accident was due to Hickey’s own actions by placing himself in that location. Or that Paul could not be negligent because he did not see Hickey. Or that there was conflicting testimony as to exactly how the accident happened. The Regalbutos pointed out that there had been no evidence submitted on the issue of the reasonable and proper way to operate the excavator so as to prevent injuries to those who might not be visible to the cab operator.

Specific standards or guidelines regarding the use and operation of excavators could be some evidence to support a claim of negligence, but were not required, particularly when the facts were not of such a nature that require any particular expertise regarding the safe operation of the equipment. The salient and dispositive facts here were that Paul was looking in the opposite direction than the excavator was moving and did not satisfactorily check his surroundings to be sure that Hickey was not behind the excavator. That was not a situation of an unknown person being in a dangerous area without the operator’s knowledge (which would involve a different consideration of duty and foreseeability), but Hickey was assisting Regalbuto in cutting down the trees. At the very least, there was a duty to verify, visually or otherwise, that Hickey and his co-worker were not in a spot where they could be struck when the excavator was moved. There were two people working with Regalbuto, and he needed to be sure that neither one of them was behind the excavator. In actuality, the fact that one of the workers was not visible was the very reason not to move the excavator. The negligence was established even without industry standards or expert testimony. And even if Paul did not know Hickey had bent down to cut the tree stump, any dispute as to exactly how the accident happened did not alter the negligence in driving the excavator while facing the opposite direction and in not having first verified the safe location of both workers.

Hickey did not have to demonstrate the absence of his own comparative negligence to be entitled to summary judgment as to Paul’s liability. Even if the trier of fact were to ultimately determine that Hickey had some degree of comparative fault, that would go to the issue of damages, not negligence. Any comparative fault could be addressed by the fact finder, but did not raise a triable issue of fact with respect summary judgment on negligence.

The Court then turned to the claim for summary judgment against Mary Ann Regalbuto. Hickey’s complaint alleged that both of the Regalbutos owned the property where the accident occurred. So Hickey alleged that Mary Ann also had a duty to a worker on the property by virtue of her shared ownership of the land. She was apparently not at all involved in the work being done, but Hickey claimed that both of the Regalbutos were responsible for directing the work, and had a duty to ensure reasonable and adequate protection for workers. However, Hickey did not present any evidence, or make any argument, with respect to Mary Ann’s liability, and focused only on Paul’s negligence in the operation of the excavator. So Hickey did not meet his burden for summary judgment against Mary Ann.

Hickey’s motion for summary judgment against Paul Regalbuto was granted. And his motion for summary judgment against Mary Ann was denied.

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