A woman who allegedly startled a 73-year-old man by walking toward him while he was on a ladder and passing under a tree limb he was cutting can be sued under the theory that she caused him to fall and break his ribs, the Pennsylvania Superior Court has ruled.

In Thibault v. Kerr, a split three-judge panel consisting of Judges John T. Bender, Judith Ference Olson and Victor P. Stabile reversed an Allegheny County court's dismissal of Jean-Gilles Thibault's lawsuit against his next-door neighbor's daughter, Nancy Kerr.

Thibault stood on a ladder on his 92-year-old neighbor's property while attempting to cut down a tree limb at her request, according to the panel's majority opinion. Kerr walked toward him and passed under the limb, attempting to tell him that she didn't want the limb cut. Thibault tried to tell her to back up but, in the process, fell 10 feet off the ladder and was injured.

After Thibault and his wife filed suit, the Allegheny County judge granted Kerr's request for summary judgment, holding there was no issue of material fact.

“Regardless of whether [Nancy] owed a duty to [Jean-Gilles] and regardless of which version of this unfortunate accident the jury would accept, the jury could not reasonably find that approaching and addressing a man standing 10-12 feet above ground on a ladder constitutes negligent conduct. Nor could the jury reasonably find such conduct to be a factual cause of the accident,” the judge said.

However, Stabile wrote in the court's majority opinion that the opposite could be true.

“These conclusions by the trial court do not consider all facts surrounding this accident, at least as maintained by Jean-Gilles, when viewed most favorably to him,” Stabile said. “A jury might very well consider that Nancy's approach under the tree limb that Jean-Gilles was cutting, and which was about to fall, was conduct that affected Jean-Gilles and created an unreasonable risk of harm to him so as to sustain an action in negligence. Consequently, we conclude the trial court committed error of law by granting summary judgment in Nancy's favor and dismissing appellants' claims with prejudice.”

Bender, however, disagreed and filed a dissenting opinion, pointing to testimony from Thibault in which he said Nancy was eight feet away from him when he waved her off.

Based on that, Bender said, “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.”

Thibault's attorney, Michael Murphy of Ogg, Murphy & Perkosky, did not return a call seeking comment.

Kerr's attorney, Nelson Gaugler of Snyder & Andrews, said, “I respectfully disagree” with the ruling, but declined to comment further.

(Copies of the 12-page opinion in Thibault v. Kerr, PICS No. 18-0313, are available at http://at.law.com/PICS.)