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In Reynolds v. Rich, No. E2015-12245-COA-R3-CV, filed July 22, 2016, the Tennessee Court of Appeals reversed a summary judgment in favor of the defendant in a case brought by a volunteer roofer after the volunteer roofer slipped and fell while working on a metal roof. The defendant had arranged to help his daughter build a home. He had deeded the property to his daughter and did not retain any ownership interest in the property. He offered to assist his daughter in the construction of her home because of her limited budget. His daughter had obtained a construction loan for this project, and the father/defendant was not involved in the loan paperwork – he was not a debtor/obligor on the loan. Nevertheless, his involvement in the construction process was sufficient to get him named as a defendant in the lawsuit after the roofer's accident.

The father had engaged number of volunteers, and the plaintiff was asked to help in view of his prior experience in installing a roof on his own residence. The plaintiff agreed to help. The father had discussions with all the volunteers to make sure none of them had any reluctance about going up onto the roof and working on it, and none of them had any concerns. The father made gloves available to the volunteers.

The father later observed the plaintiff standing on metal sheeting while fastening it to the framing and voiced concern to the plaintiff about his safety. The plaintiff responded that the shoes he was wearing provided him good traction.

No one, including the plaintiff himself, knew how the accident was caused. It was undisputed that the plaintiff fell off the roof and sustained extremely serious injuries.

The father never gave the plaintiff any instructions or directions on how to install the roof, nor did anyone else. The plaintiff agreed in his later deposition testimony that he made the decision about how to perform the work on the roof, or at least his portion of the work.

So, in view of all the above, why was this case not dismissed prior to a full-blown jury trial? One big part of the answer is that the plaintiff engaged an expert, who rendered an opinion that the plaintiff's volunteer status did not do away with the need for the same safety precautions required in any construction job, including a restraining device. The expert also had several other criticisms of the safety on the job site.

The presence of this expert opinion helped to set up a genuine issue of material fact that was sufficient to preclude summary judgment and allow the case to proceed to trial. While the trial court felt otherwise, the Tennessee Court of Appeals reversed and allowed the case to proceed to trial, stating: "There are genuine disputed issues regarding whether defendants could have, or should have, taken action other than, or in addition to, what was done, such as providing a safety or restraining device which would have prevented the risk of a fall from the roof."

In addressing the issue of whether the defendant owed a legal duty to the volunteer roofer, the Court of Appeals also stated that it was "clear that the reasonably foreseeable probability and gravity of harm from a possible fall while installing a roof outweighs the burden upon the defendants to engage in alternative conduct which would prevent such a risk of harm." Thus, the Court of Appeals found that a legal duty existed.

The Court of Appeals also held that a rational trier of fact/jury could, conceivably, find that the plaintiff was less than 50% at fault. (Under Tennessee law, if a plaintiff is found to be 50% or more at fault, his or her recovery is barred under the doctrine of comparative fault.) Therefore, the issue of the plaintiff's percentage of fault, like the issue of the defendant's negligence (if any), had to be submitted to a jury, and could not be dealt with at the summary judgment phase.

Would the absence of an expert on the plaintiff's part have resulted in a different outcome given the favorable facts on the side of the defendant (volunteer status of roofer, the conversation with the roofer about standing on the metal sheeting, the roofer's admission that he chose the means and methods of his work, etc.)? It is difficult to say, but one thing is certain: the presence of the expert certainly helped the plaintiff keep his case alive.

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