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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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