Case of the Day – Monday, December 13, 2021


Originally a phrase used in the computer programming world, “garbage in, garbage out” was just too useful an aphorism to stay in Silicon Valley.

Today’s case provides a good illustration as to why. One sanitation worker was backing up a garbage truck while the other, the son of a spelling-challenged mother named Kert Seymour, was holding onto a platform on the back. The truck veered too close to a tree growing along the boulevard, and strap-hanger Kert bashed his hand between the truck and the tree trunk.

If you have not studied the law (having instead favored useful pursuits), you might think that  garbageman Kert had only himself to blame for not moving his hand as the tree trunk approached. Or maybe blame the driver, who should have kept the truck farther from the tree. That’s much too logical.

There are two problems with your thinking. First, Kert couldn’t very well sue himself. There was no money there. Likewise, he could not collect much from his co-worker driver, who, if he had a lot of money, probably would not be driving a garbage truck. The employer, who owned the truck, was immune from liability to sanitation werker Kert except for whatever worker’s comp would pay. Which clearly wasn’t enough to satisfy Kert.

So what to do? The answer is obvious. You sue the homeowner’s association that owned the private road on which the accident happened, arguing that if it had not planted the tree where it did, the accident could have been avoided.

If you’re a plaintiff’s lawyer, this is how you follow the money. There’s just one problem: how do you convince a jury to overlook the fool who didn’t pay attention, or the driver who couldn’t back straight, in favor of the association that owned the tree?

The three essential elements of negligence are (1) the negligent party must owe a duty to the injured party; (2) the negligent party must have breached its duty; and (3) as a direct result of that breach, the injured party must have been actually damaged.

Before negligence can be determined, the extent of the defendant’s duty to the injured has to be defined. That was the issue in this case.

Alleging that the defendant breached a duty to sanitation werker Kert for letting a tree grow was “garbage in.” Unsurprisingly, Kert got “garbage out.” You’d think he would have known that’s how garbage works.

Seymour v. Lakewood Hills Association, 927 S.W.2d 405 (Court of Appeals of Missouri, Eastern District, Third Division, 1996). Kert Seymour (whose spelling skills obviously landed him in his chosen occupation) was a sanitation worker. Kert was riding on the back of a garbage truck when his co-worker, who was backing the truck down a private residential street, hit a tree standing in the boulevard. Kert’s hand was crushed between the truck and tree.

The road was owned and maintained by Lakewood Hills Association, so naturally Kert sued the Association for planting the tree where his co-worker could hit it. After all, while its connection to the accident seemed tenuous, the Association did have something no other likely defendant had: money.

The trial court said Kert’s position was garbage, and granted summary judgment for the Association. Kert appealed.

Held: The Court of Appeals held the Association owed Kert nothing.

Under Missouri law, if a condition on the property is so open and obvious that an invitee should reasonably be expected to discover it and realize the danger, the landowner does not breach its standard of care unless it should anticipate the potential harm despite such knowledge or obviousness. The failure to protect an invitee like Kert against conditions that are open and obvious as a matter of law does not fall below the applicable standard of care.

Lakewood Hills argued the tree in the center of the road was so open and obvious that a person should reasonably be expected to see it and recognize the danger posed. Both Kert and his co-worker admitted that they knew the tree was there. Kert stated that he had seen it many times when collecting trash. The tree being clearly visible from the end of the street, common sense dictates that a reasonable person would have appreciated the harm likely to occur should a vehicle strike the tree.

The Court held that “as a matter of law, that the dangerous condition presented by the tree was open and obvious.” In other words, Kert, if you remain vigilant while the truck is moving, you might Seymour.  

The Court consigned Kert’s lawsuit to the dustbin of litigation. Which Kert probably emptied. One handed.

– Tom Root


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