Whatley v. Sharma

In this civil action for damages caused by the felling of a tree, defendant/homeowner Melvin Whatley appeals by permission the denial of his motion for summary judgment as to the claims of his neighbors Atul and Parveen Sharma, onto whose property Whatley’s tree fell. Whatley argues that he engaged an independent contractor to fell the tree, over whose actions he had no control. We agree and therefore reverse. Summary judgment is only proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. A de novo standard of review applies to an appeal from a denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp .1

So viewed, the evidence shows that in early January 2006, Whatley hired a tree-cutting contractor for a single job: to remove two trees from Whatley’s yard for a price of $1,100 to be paid on completion. The oral contract did not specify the method of tree removal nor did Whatley give instructions on the method of tree removal. Soon thereafter on January 12, the contractor arrived at the site with a “tree climber,” whom the contractor had hired in case they needed to fell the trees by cutting them into sections also known as “topping off” the trees as opposed to felling the trees as an entire unit. They felled the first tree as an entire unit with no difficulty. Based on the tree climber’s recommendation, the contractor told Whatley that they intended to also fell the second tree as an entire unit, to which Whatley responded, “If you can do it, do it.” When so felled, however, this second tree, which was located on a hill on Whatley’s property that sloped toward the nearby property line, twisted despite the efforts of the contractor and fell into the neighboring yard of the Sharmas, damaging their trees and outdoor fountain. The Sharmas testified that the felling of the tree as an entire unit could only occur so as to damage their property.