A MARMOT IS A VARMINT
Cute … but varmints
It seems that the furry little critters called marmots dig holes and generally make pests of themselves. That’s what they say at Yosemite. And Pam Tessman would tell you they say the same in Wyoming..
She and her son spent one July 4th at a Wyoming RV park. That day, Pam walked through a field and saw a marmot hole. A few hours later, after dark, she tripped over the same hole she had seen earlier.
Of course, the fact she knew the hole was there and that the marmot probably wasn’t in the employ of the park owner didn’t matter to the limping and litigious Pam — she sued park owner Mary Berry anyway. The alliteratively named Mary Berry might tell you that Pam was something of a varmint herself. Nevertheless, the jury awarded Pam a cool quarter million dollars at trial (reduced by 25% because the jury figured that she should have remembered seeing the hole in the grassy field from earlier that day).
But the Supreme Court of Wyoming had other ideas. Before liability can attach, the Court said, there has to be a duty. In Wyoming, a landowner isn’t responsible for protecting guests from known, obvious dangers. Little furry burrowing animals tend to leave holes that are completely natural, the Court said and open and obvious. The Court said there was no reason to hold the RV park owner liable for Pam’s clumsy misfortune or to make Mary Berry pay to line Pam’s pocket.
Berry v. Tessman, 170 P.3d 1243, 2007 WY 175 (Sup. Ct. Wyo., 2007). Pam Tessman was staying at Mary Berry’s RV park. At check-in, Pam asked Mary Berry where she could take her son fishing. Mary Berry pointed Pam to a river just off the property, and Pam followed the directions. She and her son cut behind a bathhouse across several fields, over a broken-down fence and over a set of railroad tracks, to the fishing hole.
Pam saw plenty of adults and kids using the “grassy area” behind the bathhouse to get to and from the river. In fact, on the way back, Pam saw several boys playing by a marmot hole in the field behind the bathhouse. That evening, Pam was watching fireworks when she saw her son had gone up by the railroad tracks with some children who appeared to be setting off fireworks. Concerned for his safety, Pam left the lit pool area and went out into the grassy area behind the bathhouse to call him back. She stumbled into the marmot hole she had seen earlier that day and twisted her ankle.
Pam sued for compensation for her injuries. The trial court found for Pam and awarded her $259,000, which it reduced by 25% for her own negligence.
Pam appealed.
Held: The Wyoming Supreme Court reversed the trial court, and Pam got nothing.
The elements of a negligence action are a duty owed by the defendant to the plaintiff to conform to a specified standard of care and the defendant’s breach of that duty. The plaintiff must then show that the breach of the duty of care proximately caused the injury. A landowner in Wyoming owes a general duty to maintain his or her property in a reasonably safe condition, considering all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk. Landowners have no duty to protect others from known and obvious dangers, even those resulting from natural causes.
However, a plaintiff may prove that an otherwise naturally occurring condition does not fall within this rule by showing that the defendant-landowner created or aggravated the hazard, that the defendant-landowner knew or should have known of the hazard, and that the hazardous condition was substantially more dangerous than it would have been in its natural state. Even a naturally occurring, known and obvious hazard that the landowner had not aggravated could result in liability if the landowner were to create an expectation of heightened safety for people on the premises. The Court saw no reason the known-and-obvious-danger rule should not apply to the ubiquitous hazard posed by holes dug by burrowing animals.
However, Pam Tessman did not show that her circumstances warranted a finding that the marmot hole she stepped in was anything other than a naturally occurring, known and obvious danger from which Mary Berry had no duty to protect her. She made no showing that Mary Berry owed her any other duty that would support a finding of negligence here. The marmot hole was not a hazard she had created. The marmots weren’t domestic animals or pets, but wild animals present in the surrounding area and on the property itself.
Simply put, the record evidence didn’t suggest that Mary aggravated the danger posed by the marmot hole. On the contrary, the trial court found that Mary tried to minimize the danger from such holes by filling them regularly and trapping the animals whenever they became a nuisance. A landowner does not have a duty to protect a guest on her property from a naturally occurring, known and obvious hazard she has not aggravated if she has not, through her own undertaking, created an expectation that guests will be protected from such a hazard.
Mary didn’t create or aggravate the marmot hole that caused Pam Tessman’s injuries, nor did Mary do anything that could have caused Pam to reasonably rely on a heightened expectation that she would be safe from marmot holes on Mary’s property. Thus, Pam collected nothing.
– Tom Root
