MAEHL v. BRIEN

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Court of Appeal, Sixth District, California.

Kirk MAEHL, Plaintiff and Respondent, v. Beryl O'BRIEN, Defendant and Appellant.

No. H006561.

Decided: June 24, 1991

Mark G. Bonino,Susan Handelman, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Redwood City, for defendant and appellant. Donald F. Costello, Blair Griffith, Law Offices of Donald F. Costello, Santa Cruz, for plaintiff and respondent.

Beryl O'Brien appeals the judgment entered in favor of Kirk Maehl in Maehl's action to recover damages for personal injuries suffered while he was helping an independent contractor fell a tree on O'Brien's property.   O'Brien contends that the trial court erred in determining that the felling of the tree constituted a “peculiar risk” as a matter of law and in refusing to instruct the jury on the doctrine of collateral negligence.   O'Brien also argues that Maehl assumed the risk of injury as a matter of law.   We find no error and therefore affirm.

FACTUAL BACKGROUND

Mr. and Mrs. Beryl O'Brien own a home in Felton, California, a small community in the Santa Cruz mountains.   After their house was lost to fire in 1985, the O'Briens moved off the property while their house was being rebuilt.   During the rebuilding, and while the O'Briens were living off the property, they decided to have four redwood trees removed from an area between their house and the detached garage.

Mr. O'Brien hired Mitch Elam to cut down the trees.   He had heard that Elam, an independent contractor, had worked for two professional tree services in the past and was skilled in removing trees.   O'Brien did not discuss with Elam the type of equipment he would need to do the job or whether anyone would be assisting him.

Elam began the job by himself, cutting the branches off the four trees.   The next morning, he and Maehl went to the O'Brien property.   Neither Mr. nor Mrs. O'Brien was present.   Elam “chunked” down the first two trees, cutting them down in sections.   The work proceeded without incident, except that one chunk of a tree bounced as it fell and damaged a planter box.   While Elam worked on the first two trees, Maehl watched.

Because the third tree was leaning slightly over the O'Briens' garage, Elam feared that if he chunked it down pieces might fall onto the garage and cause damage.   He decided to “free fall” the tree in one piece into an area behind the garage, between a well and some bushes.   Maehl agreed that the tree should be felled in one piece rather than chunked down.

In order to guide the tree to fall between the well and the bushes, it was necessary to tie a rope from the redwood tree to another tree some distance away, which would serve as an anchor.   A large oak was selected for the purpose.   Elam planned to make cuts at the base of the redwood.   Then, at Elam's signal, Maehl was to pull on the rope.   As soon as he saw the tree begin to fall, Maehl was supposed to run away from the tree's landing area along a preplanned escape route.   Before he made the cuts, Elam asked Maehl if he knew where he was going to run.   Maehl replied that he did.   Elam did not ask precisely where Maehl planned to run.

Elam sawed the base of the redwood tree and signalled to Maehl to pull the rope.   Maehl did so.   After a while, the tree began to fall.   Maehl turned and started to run along his escape path.   After a few seconds, he looked back to judge in which direction the tree was falling.   He realized that the tree was already halfway down and he did not have time to outrun it on his planned escape route.   Knowing he had to do something else, he darted behind the large oak anchor tree and made himself small.   The falling redwood struck the top of the oak tree and slowed as it came down.   Maehl was struck by a piece of the redwood tree, a piece of the oak tree, or other debris.

Maehl suffered severe burst fractures of the spine, requiring implantation of steel rods and fusion of multiple spinal levels.   His injuries prevented him from resuming his work as an auto mechanic for over a year.   Maehl sued O'Brien for his injuries.1

Two expert witnesses testified at trial.   Lester Liebenberg, who has long been involved in the tree service business, testified that the accident was caused by Maehl's failure to follow his planned escape route.   Leslie Mayne, a longtime consulting forester, opined that the accident would not have happened had Elam used a longer rope, thereby placing Maehl outside the redwood's fall zone.   The parties stipulated that Maehl's medical expenses totalled $31,700 and his lost earnings amounted to $25,200.

The case went to the jury on the sole issue of O'Brien's liability under the peculiar risk doctrine.   The jury found in Maehl's favor, awarding $60,000 by general verdict.

DISCUSSION

1. Peculiar Risk Doctrinea. General Principles

 Generally, one who employs an independent contractor is not liable for injuries caused by the contractor's negligence.   Courts have, however, carved out exceptions to the general rule of the employer's nonliability.   It is said that the general rule of nonliability is now followed only when no good reason is found to depart from it.  (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 252, 66 Cal.Rptr. 20, 437 P.2d 508.)   A significant exception to the general rule, the “peculiar risk” doctrine, is set forth in sections 413 and 416 of the Restatement Second of Torts.   Section 416 of the Restatement Second of Torts provides that “[o]ne who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.”   Section 413 differs from section 416 only to the extent that it imposes direct liability on the employer when he has made no provision in the contract or otherwise for the taking of the required precautions.   (Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 585–586, 153 Cal.Rptr. 213, 591 P.2d 503.)

 A peculiar risk is one that is peculiar to the work to be done and arises out of its character or the place where it is to be done, against which a reasonable person would recognize the necessity of taking special precautions.  (Id. at p. 586, 153 Cal.Rptr. 213, 591 P.2d 503;  Rest.2d Torts, §§ 413, com. b., 416, com. b.)  “It is something other than the ordinary and customary dangers that may arise in the course of the work or of normal human activity.”  (Ibid.)  “Peculiar does not mean that the risk must be one which is abnormal to the type of work done, or that it must be an abnormally great risk.   It has reference only to a special, recognizable danger arising out of the work itself.”  (Ibid., quoting Rest.2d Torts, § 413, com. b [internal quotations marks omitted].)  “ ‘It is not essential that the peculiar risk be one which will necessarily and inevitably arise in the course of the work, no matter how it is done.   It is sufficient that it is a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of doing the work, or the particular method which the employer knows that the contractor will adopt.’ ”  (Ibid., quoting Rest.2d Torts, § 416, com. e.)

A variety of activities have been found to involve a peculiar risk of physical harm.   These risks include the risk of being struck by an automobile while eradicating traffic lines on a busy street (Van Arsdale v. Hollinger, supra, 68 Cal.2d at p. 254, 66 Cal.Rptr. 20, 437 P.2d 508), the risk of being run over by dump trucks backing up during road construction work (Anderson v. L.C. Smith Constr. Co. (1969) 276 Cal.App.2d 436, 445–446, 81 Cal.Rptr. 73), the risk of explosion while painting the inside of a tank with a volatile paint (Woolen v. Aerojet General Corp. (1962) 57 Cal.2d 407, 410, 20 Cal.Rptr. 12, 369 P.2d 708), the risk of falling while working on a 10–foot high wall (Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548, 557–558, 85 Cal.Rptr. 308) or on a 20–foot high bridge (Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 365–366, 104 Cal.Rptr. 566), the risk of electrocution while operating a crane near high voltage wires during bridge construction work (Walker v. Capistrano Saddle Club (1970) 12 Cal.App.3d 894, 900, 90 Cal.Rptr. 912), and the risk of a cave-in while working in a 14–foot deep trench (Widman v. Rossmoor Sanitation, Inc. (1971) 19 Cal.App.3d 734, 744–747, 97 Cal.Rptr. 52).

 Imposition of liability in circumstances embraced by the peculiar risk doctrine is considered proper because the employer is the one who primarily benefits from the contractor's work, selects the contractor and is free to insist on one who is financially responsible, or to demand indemnity.   Moreover, the insurance necessary to distribute the risk is properly a cost of the employer's business and the performance of the duty of care is one of great public importance.  (Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 508, 156 Cal.Rptr. 41, 595 P.2d 619.)

b. Application of Doctrine to Homeowners

O'Brien urges us to fashion an exception to the doctrine of peculiar risk to exonerate owners of residential property from liability for injuries caused by the negligence of independent contractors hired to do work in or about the home.   Neither his research nor ours discloses a reported case in which an individual homeowner incurred liability resulting from a peculiar risk.   By the same token, however, neither the case law nor the Restatement expressly exempts such individuals from liability.   Indeed, a Restatement illustration contemplates the imposition of liability on individual homeowners.  (See Rest.2d Torts, § 416, com. c, illus. 2.)

 The policies supporting the imposition of liability on employers of independent contractors apply to individual homeowners as well as to business entities.   The homeowner is the one who primarily benefits from the contractor's work, selects the contractor, and is free to insist on one who is financially responsible or to demand indemnity.   Insurance is available to distribute the risk, and the performance of the duty of care is one of great public importance.  (Aceves v. Regal Pale Brewing Co., supra, 24 Cal.3d at p. 508, 156 Cal.Rptr. 41, 595 P.2d 619.)

O'Brien contends that application of the peculiar risk doctrine to homeowners is unfair because homeowners have little choice but to employ independent contractors to perform services about the home;  they do not do so merely to skirt vicarious liability for torts of employees, as might an entrepreneur.   Even if the contention is accurate, his argument fails to address the question of who, as between an injured third person and a homeowner who benefits from work performed by an independent contractor, should bear the costs of injuries caused by the contractor's negligence.   Nothing in the circumstances of this case persuades us to exempt the category of homeowners from potential liability under the peculiar risk doctrine.

 This is not to say that a defendant's status as “simple” homeowner is irrelevant to application of the doctrine.   As the authors of the Restatement have observed, “an inexperienced widow employing a contractor to build a house is not to be expected ․ to require special precautions, as is a real estate development company employing a contractor to build the same house.”  (Rest.2d Torts, § 413, com. f.)   A homeowner is free to prove, in the particular case, that due to inexperience or for other reasons he or she was unable to recognize that the work for which the independent contractor was hired would create a peculiar risk of harm.

c. Foreseeability of Specific Precautions Not A Prerequisite to Liability

 O'Brien argues that the peculiar risk doctrine has no application to this case.   He urges that because there was no evidence that he had any knowledge of escape paths or techniques of free-falling trees, no evidence that he could have made intelligent inquiries about Elam's equipment or ropes, no evidence that he could have taken any precautions to prevent the occurrence of Maehl's injuries as they actually occurred, and no evidence that he could have foreseen that Maehl would deliberately remain in the path of the falling tree, the trial court should have ruled as a matter of law that no peculiar risk existed in this case.

 He misapprehends the peculiar risk doctrine.   For an employer to be chargeable with liability, he or she need simply be aware that the work is of a sort likely to create a peculiar risk of harm to others in the absence of special precautions.  (Griesel v. Dart Industries, Inc., supra, 23 Cal.3d at pp. 585–586, 153 Cal.Rptr. 213, 591 P.2d 503;  Rest.2d Torts, §§ 413, com. b., 416, com. b.)   California courts have not generally required foresight of the particular injury-producing mechanism or the practicability of specific precautions for application of the doctrine (see Comment, “Clarifying the Peculiar Risk Doctrine:  The Rule Restated” (1988) 20 Pac.L.J. 197, 212–213), and we decline to engraft such a requirement on our jurisprudence.

Certain language in Addison v. Susanville Lumber, Inc. (1975) 47 Cal.App.3d 394, 120 Cal.Rptr. 737 suggests a contrary rule.   However, the precise question O'Brien raises was not before the Addison court.   Counsel for plaintiff in Addison identified the specific precautions the employer should have undertaken.   These consisted of insuring that the independent contractor did not allow an inexperienced, untrained worker to cut down a tree, teaching him safe methods before allowing him to do so, or supervising him while he cut down the tree.  (Id. at p. 401, 120 Cal.Rptr. 737.)   The court of appeal affirmed the judgment of nonsuit, holding that because the negligence of an independent contractor in hiring untrained employees is a common, general risk, found in virtually every activity, the peculiar risk doctrine had no application to the case.  (Id. at pp. 401–402, 120 Cal.Rptr. 737.)   The court reviewed earlier California decisions on the peculiar risk doctrine, concluding that “․ in every case in which vicarious liability was imposed there was a foreseeable specific risk which could have been guarded against by particular physical precautions.”  (Id. at p. 403, 120 Cal.Rptr. 737.)

We need not determine whether the Addison court's observation is correct.   Supposing the statement to be accurate for purposes of this discussion, we do not believe it follows logically that a foreseeable specific risk or foreseeable specific precautions are a prerequisite to liability.   Indeed, California decisions support the contrary inference.   In Griesel v. Dart Industries, Inc., plaintiff was injured when he entered a construction trench to check the grade of its floor before the trench was properly shored and sloped, causing the trench to collapse upon him.  (Griesel v. Dart Industries, Inc., supra, 23 Cal.3d at p. 582, 153 Cal.Rptr. 213, 591 P.2d 503.)   He was unaware that it is possible to check the grade from the top of a trench and had not been instructed about the danger of unshored trenches.   (Ibid.)  The trial court instructed the jury that “ ‘trenching is an ordinary and customary danger of construction work.’ ”  (Id. at p. 586, 153 Cal.Rptr. 213, 591 P.2d 503.)   The Supreme Court held the giving of this instruction to be error, holding that “the jury should have been clearly instructed that a cave-in would be a peculiar risk of the work if the jury found that Dart should have recognized that anyone might enter the trench before it was properly shored or sloped.”  (Id. at p. 587, 153 Cal.Rptr. 213, 591 P.2d 503.)   The court did not hold that Dart, the employer of the independent contractor, should have foreseen that any specific precaution was necessary to prevent the injury plaintiff eventually suffered.   Although testimony revealed that Dart's superintendent viewed the unshored, unsloped trench as dangerous (Id. at p. 582, 153 Cal.Rptr. 213, 591 P.2d 503), the court nowhere discussed whether the evidence showed Dart knew or should have known about specific shoring and sloping techniques that might have prevented plaintiff's injury, or whether Dart should have foreseen that a worker would attempt to check the grade of the trench floor from within the trench rather than from the top of the trench.   Instead, the court's analysis focused on the simple issue whether Dart knew or should have known that the construction work posed a special risk of harm to plaintiff at the time when he was injured.   Griesel thus does not support the contention that an employer's knowledge of specific injury-producing mechanisms or particular precautions is required for application of the peculiar risk doctrine.

d. Collateral Negligence

O'Brien alternatively contends that he cannot, as a matter of law, be liable under the peculiar risk doctrine because Maehl's injuries were caused by his own collateral negligence, consisting of remaining in the path of the falling tree.   He urges that the trial court erred in refusing his request for a jury instruction on collateral negligence.

 The concept of collateral negligence is set forth in the Restatement.   An employer of an independent contractor, unless he is himself negligent, is not liable for physical harm caused by any negligence of the contractor if (a) the contractor's negligence consists solely in the improper manner in which he does the work, and (b) it creates a risk of such harm which is not inherent in or normal to the work, and (c) the employer had no reason to contemplate the contractor's negligence when the contract was made.  (Rest.2d Torts, § 426;  Caudel v. East Bay Mun. Utility Dist. (1985) 165 Cal.App.3d 1, 7–8, 211 Cal.Rptr. 222.)   In such circumstances, the negligence is said to be collateral.

The distinction between collateral negligence, excusing the employer of the independent contractor from liability, and ordinary negligence rendering the employer liable has been described as “a shadowy one at best.”   (Van Arsdale v. Hollinger, supra, 68 Cal.2d at p. 252, 66 Cal.Rptr. 20, 437 P.2d 508 [quoting Harper, Law of Torts (1933) § 292, internal quotation marks omitted].)   Collateral negligence has sometimes been described as negligence in the operative detail of the work, as distinguished from the general plan or method to be followed.   The California Supreme Court has noted that although this distinction can frequently be made—since negligence in the operative details will often not be within the contemplation of the employer when the contract is made—the distinction is not essentially one between operative detail and general method.   Rather, the court has said, it is between negligence that is unusual, abnormal, or foreign to the normal risks of doing the job, and negligence that creates only the normal or contemplated risk.  (Aceves v. Regal Pale Brewing Co., supra, 24 Cal.3d at p. 510, 156 Cal.Rptr. 41, 595 P.2d 619.)   The test of collateral negligence appears to be not its character as a minor incident or operative detail of the work to be done, but rather its dissociation from any inherent or contemplated special risk that may be expected to be created by the work.  (Prosser & Keeton, Torts (5th ed. 1984), Ch. 12, § 71, p. 516.)

 The facts of this case cannot support a finding of collateral negligence “unconnected with any inherent peculiar risk which could be expected to arise from this kind of work being performed” under the conditions existing at the time of performance.  (Caudel v. East Bay Mun. Utility Dist., supra, 165 Cal.App.3d at p. 9, fn. 5, 211 Cal.Rptr. 222.)   It cannot be said as a matter of law that the circumstances that combined to produce Maehl's injury were either abnormal or unusual in the context of a tree-felling project.   Therefore, the trial court correctly refused to instruct the jury on collateral negligence.

One may usefully contrast this case with Salinero v. Pon (1981) 124 Cal.App.3d 120, 137–139, 177 Cal.Rptr. 204.   In Salinero, the owners of a five- and six-story apartment building hired an independent contractor, the plaintiff's employer, to wash the windows of the building.   No safety devices from which window washers could be suspended had been installed on the building.   Consequently, the owner and the contractor agreed that the windows would be washed by means of a ladder extended over the edge of the roof from which the workers would be suspended in a boatswain's chair secured to the roof by a weighted sand bag.  (Id. at p. 126, 177 Cal.Rptr. 204.)   While the plaintiff was suspended in the chair some 35–40 feet above the ground, a fellow worker mistakenly removed the sand bag anchoring the plaintiff's chair, causing him to fall and suffer injury.   The court of appeal affirmed summary judgment in favor of the building owners, holding the peculiar risk doctrine inapplicable because the plaintiff was injured as a result of his coworker's collateral negligence.  (Id. at p. 139, 177 Cal.Rptr. 204.)   The coworker's negligence was clearly disassociated from any expected risk inherent in window washing.   By contrast, the court noted that had the sand bag tipped over, releasing the anchor for the ladder, the work method could be found unsafe and the risk “peculiar.”

The case of Elder v. Pacific Tel. & Tel. Co. (1977) 66 Cal.App.3d 650, 136 Cal.Rptr. 203, which held the peculiar risk doctrine inapplicable owing to collateral negligence, illustrates a similar distinction.   In Elder, plaintiff was injured after making several unsafe deviations from a plan for removing a fire escape from a building owned by defendant.   The Elder court noted that the risk that materialized in plaintiff's injury was not one inherent in the nature of the specific demolition operation, but rather arose out of his own negligence in sawing through the steel reinforcing rods that supported the platform on which he stood.

O'Brien urges that Maehl's deviation from the tree-felling plan is necessarily equivalent to the Elder plaintiff's deviation from the demolition plan.   We cannot agree.   Evidence showed that Maehl deviated from the original plan because he perceived that to carry it out was physically impossible due to the unexpected quickness of the tree's fall.   Consequently, collateral negligence within the meaning of the Restatement was not present.

O'Brien contends that Elam's use of a rope that may have been too short to do the job safely constituted collateral negligence in an operative detail of the work, precluding liability under the peculiar risk doctrine.   We disagree.   Elam's choice of the particular rope he used did not create a risk of harm that was not inherent in or normal to tree-felling, as is necessary to avoid liability under the collateral negligence exception.   (Rest.2d Torts, § 426.)   In no way is the risk generated by inappropriate rope selection equivalent to the risk of injury from misuse of hand tools held, in Stark v. Weeks Real Estate (1979) 94 Cal.App.3d 965, 972, 156 Cal.Rptr. 701, to fall outside the peculiar risk doctrine.   In Stark, employees of the independent contractor disabled the guards on the blades of their hand-held power saws and plaintiff Stark was injured when his arm came into contact with an unguarded blade.   Clearly, in Stark the disabling of the blade guards created a risk of harm not normal to the construction work in which Stark was engaged.   By contrast, nothing about Elam's choice of rope qualitatively altered the risk of physical harm from felling trees.

e. Claims of Instructional Error

 O'Brien urges that the trial court incorrectly removed from the jury's consideration two elements of the peculiar risk doctrine by instructing that the risk involved in this case was peculiar to the tree-felling work and arose out of the character of the work or the place where it was done.   Indeed, he seems to contend that the tree-felling work did not involve a peculiar risk as a matter of law.   We disagree.   Whether the particular work that the independent contractor is to perform is likely to create during its progress a peculiar unreasonable risk of physical harm to others unless special precautions are taken is ordinarily a question of fact for resolution by the jury.  (Walker v. Capistrano Saddle Club, supra, 12 Cal.App.3d at p. 899, 90 Cal.Rptr. 912.)   However, when undisputed evidence can reasonably support but a single inference on an issue, the trial court properly decides the issue as a matter of law.  (Cf. Pasadena Star–News v. Superior Court (1988) 203 Cal.App.3d 131, 134, 249 Cal.Rptr. 729.)   Here, given the essentially undisputed evidence as to the size of the trees, their proximity to other structures, the character of the surrounding terrain, and the likelihood that a falling tree will cause serious injury to any person or thing it strikes, we do not believe reasonable minds could disagree that the tree-felling performed by Elam and Maehl involved a risk of physical harm arising out of the character of the work or the place where it was done.   Thus, the trial court did not err in instructing the jury that the first two requirements of the peculiar risk doctrine were satisfied as a matter of law.

 O'Brien contends that the jury must have been misled by the way in which the trial court presented the final instructions on peculiar risk.   He points to the following statements made by the court as the case was about to be submitted to the jury:

“So you are only going to be instructed on the theory of peculiar risk.

“Now, I know you weren't taking notes and jotting all this down.   There were several elements to that theory of peculiar risk.   And one of the instructions I gave you defined what peculiar risk was in the law.

“The first requirement is that this particular risk be peculiar to the work to be done.   And two, which arises out of the character of the work or the place where the work is to be done.   There are other requirements that you'll be read.

“I have ruled as a matter of law that this activity is in fact such a risk.   So you don't need to decide that question.”

O'Brien argues that even though the trial court intended to leave the question whether a peculiar risk was present in this case to the jury, its statement must have led the jury to believe nothing remained to be decided on the peculiar risk issue.   The contention is meritless.   After informing the jury that the court had determined as a matter of law that the risk of injury was peculiar to the work to be done and arose out of the character of the work or the place where it was to be done, the trial court expressly noted, “There are other requirements that you'll be read.”   The trial court later read to the jury BAJI 13.21.4, the standard instruction on peculiar risk, leaving out the first two elements, which the court had ruled as a matter of law were present.   We do not believe the instruction as read could have misled the jury as to its duty to decide whether O'Brien should have recognized that the tree-felling work was likely to create a risk of harm to others in the absence of special precautions.   We also find no indication that the jury was confused about its task, O'Brien's speculations to the contrary notwithstanding.   The jury did not request explanation of the instructions and reached a unanimous verdict.

2. Assumption of Risk

O'Brien urges reversal of the judgment on the alternative ground that he owed no duty to Maehl as a matter of law because Maehl voluntarily assumed the risk of injury in assisting Elam.   An individual “who knowingly and voluntarily assumes a risk, whether for recreational enjoyment, economic reward, or some similar purpose, is deemed to have agreed to reduce the defendant's duty of care.”  (Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 104, 243 Cal.Rptr. 536.)   We may assume for purposes of this discussion that the concept of reasonable implied assumption of risk remains viable under California's comparative negligence system.2  (King v. Magnolia Homeowners Assn. (1988) 205 Cal.App.3d 1312, 1315–1316, 253 Cal.Rptr. 140;  Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 103–104, 243 Cal.Rptr. 536.)

 To warrant the conclusion that defendant owed plaintiff no duty by reason of plaintiff's assumption of risk, the evidence must show that the plaintiff appreciated the specific danger involved.   He must have not only general knowledge of a danger, but knowledge of the particular danger he faces, that is, knowledge of the magnitude of the risk involved.  (Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 406, 143 Cal.Rptr. 13, 572 P.2d 1155.)   In support of his contention that Maehl assumed the risk of being injured, O'Brien cites testimony in which Maehl acknowledges that he knew the tree was going to fall in a general arc and that if it fell exactly as contemplated, it would land at the oak tree behind which he took shelter and was hurt.   Maehl also acknowledged that he knew a falling tree was dangerous, that if it struck him he would be killed or seriously injured, and that he was not forced to help Elam.   Maehl's subjective appreciation of the general danger of injury from a falling tree does not, however, establish that he knew how fast the tree was likely to fall and therefore how much time he would have to get out of its way.   Indeed, his testimony is directly to the contrary.  “I turned around to judge which direction arc the tree was falling in, and I realized at that point the tree was already at 45 degrees.   It was already halfway down and I obviously didn't have enough time to outrun it on my escape route.  [¶] And I still couldn't judge from the angle which arc it was in.   I didn't want to run either side.   I didn't know where it was going to fall, OK?  [¶]  I just realized that it was already halfway down.   And at that point I decided I better do something else.   So I decided to dart behind the largest tree I could find, which was this oak tree.”   On cross-examination, Maehl testified further:  “I look back at the tree, I see that it's coming down apparently straight.   But it's already at 45 degrees.   Here I was expecting to look at this tree coming back down.   And I was expecting to have hinged.   You know, the tree starts to come, it starts hinging and popping and breaking, and it starts to come down and descend.  [¶]  This tree came down so fast it was like nothing I'd seen before as far as starting to fall and then gaining speed.   There was no way I could outrun this tree.”

Maehl's unfamiliarity with the speed at which the tree could be expected to fall makes this case similar in certain respects to Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 255 Cal.Rptr. 755.   In Von Beltz, plaintiff, a movie stuntperson, was injured when the film's director changed a previously-performed stunt maneuver without informing plaintiff.   The changed stunt required the car in which plaintiff was a passenger to weave in and out of oncoming traffic at about 50 miles per hour, substantially increasing the risk of injury over that originally contemplated.   Plaintiff was severely injured when the stunt car collided with a van.   Defendants contended that by performing in a movie stunt, plaintiff assumed the risk of being injured.   The court disagreed.  “A professional stuntperson might be presumed to have expertise or physical agility which minimizes the hazards of a movie stunt.   Nonetheless, the stuntperson normally performs a stunt knowing danger has not been entirely eliminated.   Where a stuntperson has full awareness of the hazards he faces, it may be possible to conclude that under the circumstances, he has assumed the risk of injury.   However, where a movie director or producer changes the nature of the stunt without the stuntperson's acquiescence, the director or producer may be held liable for any resulting injuries.   When in such circumstances a stunt goes awry, the apportionment of negligence will normally be a question for the trier of fact in any ensuing litigation.”  (Id. at p. 1479, 255 Cal.Rptr. 755.)

In this case, the evidence showed that Maehl did not know that a tree whose limbs had been removed would fall faster than other trees.   Maehl had never seen a large tree, minus limbs, fall.   When he pulled on the rope that was attached to the redwood, he expected it to fall with a “parachute” effect, giving him plenty of time to clear the area.   What in fact happened came as a surprise to him.   Maehl did not as a matter of law assume the risk of his injuries.

O'Brien relies on Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 260 Cal.Rptr. 1 and King v. Magnolia Homeowners Assn. in urging the contrary conclusion.   Nunez and King are, however, readily distinguishable.   In Nunez, plaintiff, an experienced gardener, chose to use a ladder of whose rickety condition he was aware.   Furthermore, he chose to saw off a tree branch in a single 15– to 16–foot section, rather than in smaller, safer sections.   When it was partially severed, the branch swung down, striking the ladder.   The ladder and plaintiff fell to the ground, and plaintiff suffered injury.   The court held that any danger inherent in the operation was obvious, not obscure or concealed, and that plaintiff had therefore assumed the risk of injury.   (Id. at pp. 562–563, 260 Cal.Rptr. 1.)  Nunez cannot dispose of this case because, although Maehl was undisputedly aware of the general danger involved in felling trees, he was ignorant of the specific risk that a denuded tree would fall faster than he could outrun it.  King is even more readily distinguishable.   Plaintiff in that case was injured in attempting to descend a ladder having insufficient toe space under standards set by the City of Los Angeles Mechanical Code.   Once previously, plaintiff had used the ladder without incident.   The court concluded that plaintiff had knowledge and appreciation of the specific risk involved and had voluntarily exposed himself to danger.  (King v. Magnolia Homeowners Assn., supra, 205 Cal.App.3d at p. 1315, 253 Cal.Rptr. 140.)   Maehl, by contrast, had never participated in felling an entire tree before the incident that led to his injuries.   Under these circumstances, we cannot charge him with assumption of the risk of harm.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Maehl also sued Elam, but dismissed the action with prejudice as to him before trial.

2.   The California Supreme Court has granted review in several cases addressing the continued viability of implied assumption of risk.   (Harrold v. Rolling J Ranch (1990) 218 Cal.App.3d 36, 266 Cal.Rptr. 734, review granted May 23, 1990 [S014818];  Ford v. Gouin (1990) 227 Cal.App.3d 1175, 266 Cal.Rptr. 870, review granted May 23, 1990 [S014828].)

ELIA, Associate Justice.

PREMO, Acting P.J., and COTTLE, J., concur.