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MASCIANGELO v. DOLENTE ET AL. (09/15/72)

decided: September 15, 1972.

MASCIANGELO
v.
DOLENTE ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas of Montgomery County, No. 67-12050, in case of Raymond M. Masciangelo v. Fred Dolente et al.

COUNSEL

Raymond M. Seidel, with him High, Swartz, Roberts & Seidel, for appellants.

Thomas J. Burke and Dean B. Stewart, Jr., with them Haws and Burke, and McTighe, Brown, Weiss, Bonner & Stewart, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J.

Author: PACKEL

[ 222 Pa. Super. Page 369]

The appellants seek to overthrow a verdict of $113,500*fn1 in favor of the appellee, who was struck by part of a tree coming up from the ground as he was operating a bulldozer. The appellants, by contract, had been obligated to clear the ground of any trees.

A real estate development corporation employed the appellants to clear a densely wooded tract and to remove all trees and stumps to predesignated areas. The uncontradicted testimony was that the performance of the work was ended and accepted by July of 1965 and that the ground appeared to be clear of any trees. On November 10, 1965, the plaintiff's son used mechanized equipment to dig a trench in the tract for the installation of sewer pipes. He piled the excavated dirt along the trench. He testified that he saw no tree in the course of his work. As the plaintiff caused the bucket of his bulldozer to take its second scoop of earth along the trench, a tree sprang up, roots first, and struck

[ 222 Pa. Super. Page 370]

    him. The testimony was that the top of the tree remained embedded at the side of the trench.

The appellants seek reversal on the ground that there was no evidence of negligence. They make collateral reference to the defenses that the plaintiff was contributorily negligent and that they had been completely off the site for many months. Finally, they claim that the development corporation, an added defendant, should not have been granted a non-suit.

Cutting through the confusion stemming from the bizarre facts, the liability of the defendants is based upon a failure to clear the land of all trees. It is fair to say that the purpose of such clearance was to prevent injury to property or to persons working on the tract due to the unexpected presence of trees, and the evidence bears this out. The peculiar way in which an injury may result is not material so long as there was a foreseeable probability of injury to one within the ambit of danger.*fn2

We can start with the black letter rule of Restatement 2d of Torts, ยง 385, which provides:

"Persons Creating Artificial Conditions on Land on Behalf of Possessor: Physical Harm Caused ...


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