Thibault, J. v. Kerr, N. ( 2018 )

J-A21037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JEAN-GILLES THIBAULT AND GLORIA IN THE SUPERIOR COURT
THIBAULT, HIS WIFE, OF
PENNSYLVANIA
Appellants
v.
NANCY KERR,
Appellee No. 596 WDA 2017
Appeal from the Order Entered April 11, 2017
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD16-5536
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED: March 9, 2018
The Majority, relying on the Restatement (Second) of Torts § 303,
determines that Nancy should have realized that walking toward the tree was
likely to affect Jean-Gilles’s standing on the ladder in such a manner as to
create an unreasonable risk of harm to him. I disagree. Jean-Gilles described
the incident as follows:
[Nancy’s Attorney]: So Nancy comes into the backyard, she starts
walking towards the tree?
[Jean-Gilles]: Uh-huh.
[Nancy’s Attorney]: Right so far?
[Jean-Gilles]: Yeah.
[Nancy’s Attorney]: Okay. And from your observation, she was
maybe going to walk under the branch that you were cutting?
[Jean-Gilles]: Correct.
[Nancy’s Attorney]: Okay.
J-A21037-17
[Jean-Gilles]: Uh-huh.
[Nancy’s Attorney]: And when you saw her walking in that
direction, you said something to her, like, Nancy, get away, or
don’t walk under the branch, something like that?
[Jean-Gilles]: That is when I motioned (indicating). I lost the
balance myself because I was afraid the branch was going to fall
on her head.
[Nancy’s Attorney]: Okay. So while you were saying, Nancy, get
away, or something like that you, you make a motion with [your]
right hand, also?
[Jean-Gilles]: Yes, and this is why I lost -- I lost and I went back
and (indicating)…[.]
***
[Nancy’s Attorney]: Like when you were waving at Nancy, when
you were waving her out of the way, how far away from you was
she?
[Jean-Gilles]: She was about, I would say, 8 feet, 8 feet in the ball
park.
Deposition of Jean-Gilles, filed 1/9/2017, at 18-19, 22-23.
Based on the foregoing, I do not believe that Nancy should have realized
that, by starting to walk towards Jean-Gilles on the ladder and in the direction
of the tree branch he was cutting, she would affect Jean-Gilles in such a way
as to create an unreasonable risk of harm to him. Accordingly, I respectfully
dissent.
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