Wirtz v. Gillogly

Dennis Gillogly (defendant) asked his friend, Robert Wirtz (plaintiff) to help with a tree-felling project. The project was to cut down trees on property owned by Dennis’s father, David Gillogly (defendant), to prevent interference with cable television lines. Wirtz agreed to help as a favor, without any payment. Dennis offered Wirtz a hardhat on several occasions, but Wirtz refused. During the first few days, Wirtz only stacked wood after trees were felled and cut into logs. After several days, Dennis asked Wirtz to help fell a tree near the cable lines. Dennis and David set up a cable around the tree’s trunk to ensure the tree fell away from the cable lines. Dennis also notched the tree to make it fall in the desired direction. Wirtz’s job was to operate a come-along ratchet to keep the cable tight. The plan was to force the tree to fall toward Wirtz, and Wirtz had an escape plan to avoid being hit by the tree once it fell. As Dennis was cutting the tree, the tree’s trunk split, and Dennis stopped. Dennis, David, and Wirtz discussed how to proceed. Dennis offered Wirtz the option to stop helping, but Wirtz agreed to continue. Wirtz went back to the ratchet, and Dennis continued cutting the tree. The tree split, and part of the tree hit Wirtz in the head, causing an injury. Wirtz sued David, David’s wife, Dennis, and Dennis’s wife, alleging negligence. The defendants moved for summary judgment, arguing that Wirtz assumed the risk of participating in the tree-felling project. The trial court granted the motion, and Wirtz appealed.