Summary
holding that a contractual obligation to make minimum annual debt payments was a continuing obligation and a breach of contract occurred each year defendant failed to make minimum payment
Summary of this case from Guilbert v. GardnerOpinion
November 16, 1989
Appeal from the Supreme Court, Saratoga County (Brown, J.).
In early April 1986, defendant approached plaintiff, his neighbor, to borrow climbing spurs and other related equipment for the purpose of cutting limbs from trees on his property. Rather than lend such equipment to defendant, plaintiff offered to do the work himself, indicating that he had prior experience in using his equipment and, further, that on several occasions he had climbed to heights of 35 to 40 feet to trim his own trees using that equipment. On April 12, 1986, plaintiff, with defendant's permission, entered upon the latter's property and commenced the tree pruning. No consideration was requested by plaintiff and none was paid. Defendant assisted plaintiff merely by picking up fallen branches and by occasionally indicating which branches needed trimming. During the trimming, plaintiff fell from a height of approximately 20 feet, sustaining a broken left elbow and other injuries.
Plaintiff commenced this action to recover damages alleging that defendant was negligent in failing to warn and otherwise supervise an inherently dangerous activity. After issue was joined, defendant moved, inter alia, for summary judgment dismissing the complaint. Supreme Court granted the motion and this appeal by plaintiff ensued. We affirm.
While a landowner owes a duty to another on his land to keep it in a reasonably safe condition (see, Basso v Miller, 40 N.Y.2d 233, 241), where, as here, the injury resulted not from any unsafe condition of defendant's land but as a direct result of plaintiff's use of his own equipment while engaged in an activity he volunteered to undertake, no liability of the landowner will result (see, Macey v Truman, 70 N.Y.2d 918, 919). In the absence of some showing that defendant's conduct in designating several branches to be trimmed or cut was causally related to the accident, defendant cannot be held liable on the theory that his conduct was negligent (see, supra, at 919-920).
Order affirmed, with costs. Mahoney, P.J., Weiss, Mikoll, Yesawich, Jr., and Levine, JJ., concur.