The North Carolina Court of Appeals recently affirmed a summary judgment against a plaintiff who claimed a church was negligent in the death of a parishioner who volunteered to cut down a tree limb, and died in the process.
The primary grounds on which the court affirmed the earlier ruling in McKinney v. Greater Gethsemane African Methodist Episcopal Zion Church of Charlotte was based on the principle of contributory negligence. Our Charlotte injury attorneys know that proving the plaintiff did not contribute to the injury is especially critical in North Carolina because we live in one of the few states that adheres to the strict doctrine of contributory negligence.
Pursuant to this theory, if a plaintiff or injured party is in any way negligent or culpable for the accident, he or she may not collect any damages. This is contrary to the model followed by the majority of states, which allows an apportionment of damages, based on the percentage of contributory negligence.
So for example, if a motor vehicle crash occurs and the court finds the plaintiff was 25 percent negligent in the accident, he or she will not be barred from pursuing damages, but whatever amount is awarded will be reduced by one quarter.
In the McKinney case, the court found the plaintiff was “clearly contributorily negligent,” and therefore affirmed a judgment favoring the defense.
According to court records, the plaintiffs alleged the defendant church, of which the decedent was a member, failed take necessary precautions, as tree cutting is an inherently dangerous activity, and further the church was negligent in soliciting, training and supervising the decedent in cutting down the tree.
The decedent and another church member often work together to perform various maintenance tasks for business purposes. On this particular day, they agreed to perform a number of maintenance tasks at the church for free, as volunteers. One of those tasks involved cutting down a tree limb.
When the decedent told his fellow member he was about to cut down the limb, the other member, who was changing a light bulb, asked him to wait. However, the decedent did not wait. Several minutes later, the fellow member went outside and found the decedent on the ground, next to an A-frame ladder, unconscious and not breathing. He was soon declared dead.
No one saw the fall happen. The coroner speculated a heart attack may have caused the decedent to fall, but the cause of death was a spinal cord injury resulting from the fall.
N.C. Gen. Statu. 539.10(b) holds in general, a person who accepts the services of a volunteer is not liable for the volunteer’s actions, though qualified immunity can be waived if the organization has secured liability insurance.
Here, the plaintiffs alleged that tree-cutting is an inherently dangerous action. In order for a claim of inherently dangerous to be successful, a plaintiff must show:
- The activity was inherently dangerous;
- At the time of injury, the defendant knew or should have known the activity was inherently dangerous;
- The defendant did not take precautions necessary to control the possible risks;
- That failure by the defendant caused the plaintiff’s injury.
In cases of tree-cutting, the courts have held that such activity in a rural setting is not inherently dangerous, but that in an urban setting can be. Here, the activity occurred over a church parking lot. The greatest concern would have been damage to parishioners’ cars. Further, there was evidence to suggest the decedent was experienced in tree maintenance, including removal of limbs and use of ladders and chainsaws. Thus, the facts failed to support the claim of the activity being inherently dangerous, the court found.
The court further indicated there was scant evidence to suggest the church was negligent at all. But even assuming there was, the court indicated, there was enough evidence to support the argument that the decedent was contributorily negligent.
- The decedent stood on the very top rung of the ladder, despite safety instructions to avoid this action;
- The ladder was placed on ground that was soft and made it unstable, despite the option of placing it several feet away on solid concrete;
- The decedent’s maintenance partner asked him to wait, and he did not;
- The decedent was experienced in tree maintenance, and therefore understood the risks;
- The church did not demand the decedent perform this task, and had only asked because they knew these two parishioners were experienced in such work.
Contact the North Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
McKinney v. Greater Gethsemane African Methodist Episcopal Zion Church of Charlotte, July 1, 2014, North Carolina Court of Appeals
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