Case of the Day – Thursday, February 15, 2024

Posted on February 15, 2024 by TLRoot tagged.

ACORNS KEEP FALLIN’ ON MY HEAD…

It started as a simple idea: establish a court without lawyers, a place where people with a beef could be heard, where small-scale justice can be dispensed, where people found common-sense answers to problems. And thus, small claims court was born, having its origin – ironically enough – as the “court of conscience” in medieval England.

The rules are simple, the docket is swift: usually, from the filing of the action to the hearing, not much more than a couple of weeks pass. There is no fancy-Dan pleading, no arcane procedures, no onerous discovery. Just two people with a problem and one judge to listen and decide.

Many years ago, long before law school interrupted my life, I sent roses by FTD to a girl in another state on Valentine’s Day. I thought it strange when she thanked me for the “flowers.” People would normally say, “Thanks for the roses.” After about the third time she said “flowers” instead of “roses,” I thought to ask her what she had received from me. It turned out that I paid for roses, and got a mixed-flower arrangement suitable for a funeral… but not a valentine.

When I complained to my local florist, he told me dismissively that if the receiving florist in the other state was out of roses, he or she could substitute “another arrangement of equal value.” Getting no satisfaction there, I filed a small claims complaint. On the day of the hearing, the flower shop owner stalked into the courtroom and gave me my money back.

Sweet justice!

So I love small claims court. But I recognize its principal drawback, which is that lawyers can still show up and make a mess of things. That’s what happened in today’s case.

Daphne Kohavy, a savvy resident of Gotham, rented a parking space in a lot next to her co-op apartment building in the Bronx. The co-op had a management company, Veritas, running the lot. Daphne’s car was parked under an oak tree that rained acorns on her ride. This should not seem surprising to many of us who understand that those funny little acorns hanging on oak trees like to drop. But Daphne was a New Yorker and had only the most fleeting acquaintance with green things that grow from the earth. The acorn rain surprised her, and – according to her complaint – caused over $1,500 in damage to her wheels.

She sued in small claims court. Veritas brought its lawyers (in its defense, the law required it appear through lawyers because it was a limited liability company). Its lawyers started milking the case for fees, filing motions to dismiss for all sorts of reasons.

The court was not amused. Small claims court is supposed to be easy, where parties aired the claims instead of tying each other up in “gotcha” motions. The court scolded the defendants, holding that because Daphne said the tree was defective, she should have a chance at trial to prove it.

We don’t think much of Daphne’s lament. Oak trees drop acorns. That’s no surprise. But on the other hand, Veritas tried to muck up the small claims process (forcing poor Daph to go out and hire her own lawyer). Perhaps distributive justice – where the right thing gets done for what nominally is the wrong reason – triumphed.

Kohavy v. Veritas Management, LLC, 2017 N.Y. Misc. LEXIS 1380 (Civil Ct. Bronx County, 2017): Daphne Kohavy leased a parking space next to her apartment building on a lot owned by defendant 511 W. 232nd Owners Corp. was the owner of the parking lot. Veritas Management, LLC was the lot’s managing agent. While parked there, Daphne’s car was damaged from acorns falling from a tree overhanging her parking space. It sounds like classic encroachment and sensible harm. She sued in small claims court for $1,500.

Veritas, through its lawyers, moved to have Daphne’s claim dismissed because it was just the manager, not a party to the contract for her space between Daphne and the Co-op, and not the owner of the lot or the oak tree. What’s more, Veritas claimed, it did not maintain exclusive control of the premises, and even if it did, the law does not recognize a cause of action in negligence for damage due to falling acorns.

The motion to dismiss also claimed that the Co-op could not be held liable as the damage to Daphne’s car was caused by a healthy tree, and even it was not, the Co-op lacked notice of any such defect.

Held: The court began by scolding Veritas for gumming up the court’s processes with dispositive pretrial motions, noting that the “informality and convenience of small claims practice is necessarily frustrated by requiring pro se litigants to respond to formal motion practice…” But in the interest of moving things along, the Court addressed Veritas’ motion.

The Court found that there was a question of fact (because Daphne had said so) regarding the condition of the overhanging oak tree that had damaged her car. While the Court said there was no privity of contract between Daphne and Veritas, “questions of fact with regards to defendant Veritas’ control over the parking lot, as per the terms of the management agreement between defendant Veritas and defendant Cooperative, exist.” If Daphne could show that Veritas maintained exclusive control over the parking lot under the management agreement between it and the Co-op, and that Daphne’s damages were the result of Veritas’ negligence, she might be able to recover in negligence from Veritas.

The Court noted that Daphne “commenced this Small Claims action as a pro se litigant. It was not until the plaintiff was served with this instant motion that the plaintiff retained counsel to represent her. Accordingly, in this case, the filing of this instant motion prior to a hearing has indeed frustrated the purpose of New York City Civil Court Act § 1804 and its concern for protecting inexperienced pro se litigants and providing them with an expeditious and inexpensive forum to resolve small claims.”

– Tom Root

Case of the Day – Wednesday, February 14, 2024

Posted on February 14, 2024 by TLRoot tagged.

WATCH OUT FOR THAT TREE!

The old ‘60s cartoon George of the Jungle featured an earworm theme song that always warned George to “watch out for that tree!” just before he collided with an unforgiving trunk. Tom Kranz discovered that life imitates art.

Grandpa Tom should have watched out for that tree, too. As he pushed his granddaughter’s stroller past the Perkinses’ house, he noticed a limb from one of their trees was overhanging the sidewalk. He moved onto the tree lawn to sidestep the branch, but somehow managed to skewer his eardrum with a twig.

Ouch. But in a case with parallels to Friday’s coffee-shop debacle, Tom sued the Perkinses, claiming they owed him a duty to be sure he did not run into a branch he could clearly see and avoid. And just like yesterday, the court said (albeit it with some legalese), “C’mon, man!”

Even when someone is just walking past your house, they are a licensee, entitled to use the public sidewalk, and you have a duty not to engage in willful or wanton conduct that cause them harm. But an untrimmed branch does not rise to such willful or wanton conduct, and that’s especially so where the pedestrian is perfectly able to see the danger. Tom admitted to an accident investigator that the tree was “easy to go around.” Where a licensee has equal knowledge of the dangerous condition or the risks involved, the court told Tom, “there is no willful or wanton action on the part of the owner and there is no liability to the licensee.”

Common sense… parents, mind your kids. And Tom, for heaven’s sake, watch out for that tree.

Perkins v. Kranz, 316 Ga.App. 171 (Ct.App. Georgia, 2012). While walking in a Gwinnett County subdivision, Thomas Kranz’s eardrum was punctured by a branch from a tree overhanging the sidewalk. Kranz sued Jerry and Nyda Perkins, on whose property the tree was located, claiming negligence. The Perkinses asked the trial court to throw out Tom’s complaint, but it refused.

The Perkinses appealed.

Held: Tom’s case was thrown out. After all, he saw the tree, with its limbs extending over the sidewalk, obstructing his path. To avoid them, Tom moved off of the sidewalk onto the strip of grass between the sidewalk and street. But as he passed the tree, he felt a sharp pain, and eventually realized that a twig had entered his ear and pierced his eardrum.

The essential elements of a negligence claim are the existence of a legal duty, breach of that duty, a causal connection between the breach and the plaintiff’s injury, and damages. The threshold issue is whether the Perkinses owed a legal duty to Tom Kranz. The Perkinses argued that Tom was, at best, a licensee, but Tom said he was an anticipated licensee, and argued the Perkinses had to exercise ordinary care to prevent injuring him.

But the Court said it did not matter what Tom was. “Pretermitting any decision on Kranz’s potential status as a licensee, anticipated licensee, or invitee, he may not recover as a matter of law because the evidence establishes that he had equal knowledge with the Perkinses of the potential danger posed by the tree.” In other words, the Court said, Tom could see the branch. If he was negligent enough to walk into a tree branch he could easily observe and avoid the branch, he had no one to blame but himself.

An owner, the Court held, “has no duty to a licensee to keep the premises up to any standard of safety, except that [the property] must not contain pitfalls, mantraps, and things of that type.” Here, the tree and its overhanging branches were “in no way a pitfall, mantrap, or hidden peril.” Tom should have avoided the danger. He did not. Tough luck.

– Tom Root

Case of the Day – Tuesday, February 13, 2024

Posted on February 13, 2024 by TLRoot tagged.

TEACH YOUR CHILDREN WELL

This is hardly a law school final exam question: Two parents and a couple of hellion-spawn walk into a Starbucks. The kids promptly begin running amok, using the furniture and fixtures like a jungle gym. Specifically, the whelps start swinging from ropes and climbing stanchions used to mark off the line for coffee. After taking plenty of abuse from the ankle-biters, one of the stanchions falls, injuring one of the kids.

Quick: Who’s liable?

If you said Starbucks, we congratulate you, because you have a wonderful future ahead of you as a plaintiff’s attorney. If you said the parents should be responsible for their offspring’s monkeyshines, you have a future, too… as a judge.

The Roh family, a father and mother, and a pair of boys – ages 3 and 5 – visited a newly-opened Chicago Starbucks. This one had some fancy line dividers (as the line-divider industry likes to call them), created from recycled 19th-century ironwork. The dividers were mounted on concrete plugs to prevent tipping.

You’ve probably seen parents like these two, maybe focused on their smartphones, perhaps lost in conversation, perhaps just tuned out… the kids run wild, and their folks remain oblivious. But when the inevitable disaster befalls, it becomes anyone’s fault except the kid’s. Or the parents’…

But contrary to breathless Internet stories and hand-wringing commentators, America remains a land of individual responsibility. To be sure, a landowner who invites kids onto the premises is liable for dangerous conditions where the risk to the child is reasonably foreseeable. But while this rule applies where a kid is on his or her own. But where the child is with a parent, the landowner may be relieved of his or her duty to the child because parents are primarily responsible for their child’s safety because it is their “duty… to see that his behavior does not involve danger to himself.”

What a refreshing concept! Parents are responsible for their kids…

Roh v. Starbucks Corporation, 881 F.3d 969 (7th Cir. 2018): The Roh family was visiting a recently-opened Starbucks store in downtown Chicago, two parents with sons Marcus, age three, and Alexander, age five. The store had custom metal stanchions for placement within the store to direct the flow of customer traffic, salvaged posts made of 1800s-era iron fences or stair posts. The stanchions were freestanding but mounted on heavy concrete bases and connected with ropes to control shopper traffic.

As the family was leaving, the parents heard their son Marcus begin crying. The father, who had heard a loud noise immediately preceding Marcus’s cries, saw that one of the stanchions had been knocked to the ground, striking the boy and pinning his hand. Marcus lost his left middle finger and seriously injured his index finger.

Neither parent witnessed what had happened, but the boys admitted to swinging on the ropes, running around the dividers, and climbing the stanchions.

Naturally, the Rohs sued Starbucks, claiming it was negligent by failing to safely maintain the premises, to adequately secure the stanchion, to properly inspect it to ensure its stability, to warn patrons of the potential danger posed by the stanchion, or to realize that minor patrons would not appreciate the risk posed by the unsecured stanchion. The district court granted summary judgment for Starbucks, holding that the boy’s parents, not Starbucks, bore the responsibility to protect Marcus from the obvious danger posed by playing on the unsecured stanchions.

The Rohs appealed.

Held: The Rohs collect nothing, because any duty owed Marcus by Starbucks was abrogated by his parents’ presence with him in the store that day.

Whether a duty exists in a given case turns on the foreseeability and likelihood of the injury, the difficulty of guarding against it, and the consequences of laying the burden to guard against the danger on the defendant.

Generally, landowners or occupiers in Illinois owe no greater duty to small children than the duty owed to adults. In premises-liability cases involving injury to a child, “the true basis of liability [is] the foreseeability of harm to the child.” The Court said that a child’s injury will be deemed foreseeable to the landowner if (1) the owner or occupier knows or should know that children habitually frequent the property; (2) a defective structure or dangerous condition is present on the property; (3) the defective structure or dangerous condition is likely to injure children because they are incapable, due to their age and immaturity, of appreciating the risk involved; and (4) the expense and inconvenience of remedying the defective structure or dangerous condition is slight when compared to the risk to children.

Things change, however, when the child is accompanied by his or her parents. This is because “the responsibility for a child’s safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself.” A landowner’s duty to a child is abrogated if “the child was injured due to an obvious danger while under the supervision of his or her parent, ‘or when the parents knew of the existence of the dangerous condition that caused the child’s injury’.”

Both parents admitted they saw the heavy stanchions. The Court stated the obvious, that “it is a matter of common sense that serious injury could result from climbing on the stanchions and swinging from the ropes connecting them together.” Maybe the parents did not foresee Marcus getting his finger crushed, but they didn’t have to foresee the particular injury. It is enough that the Rohs saw the stanchions, which were plainly very heavy. Any parent could foresee that a child hanging from the rope connecting the stanchions or otherwise playing on and around them could be injured, the Court said, and that is “sufficient to support the conclusion that Starbucks did not breach any duty to Marcus, who was engaged in an activity while under his parents’ supervision that could obviously lead to injury of some kind.”

What the Court was saying was they should have known better. “It was plainly evident to the Rohs that the heavy stanchions were intended to control traffic flow in the store; their failure to prevent their sons from climbing and playing on them led to Marcus’s injury, not the breach of any duty on Starbucks’ part.”

– Tom Root

Case of the Day – Monday, February 12, 2024

Posted on February 12, 2024 by TLRoot tagged.

CAREFREE MOBILE HOME LIVING

Everything’s big in Texas … don’t get stung.

Texas is a pretty big place. So when Scott, who was selling a little 175-acre spread to Bill and Julie Coales, reserved to himself the right of ingress and egress — basically, a license to used a road through the land — we’re not talking a jungle trail. We’re talkin’ big. And we’re talking about moving a lot of mobile homes.

At least, that’s what the defendants said in today’s case. After they bought the place, the Coales decided move Julie’s parents onto the place and to do it in style. So they hauled in some house trailers, no doubt in order to let the old folks live in luxury. But by doing that, they constricted the 100-foot wide path, making it harder for the Scotts to haul through … well, whatever big stuff the Scotts had to haul through.

The Scotts sued, claiming that they couldn’t get their own trailers in, drive through with their 18-wheelers, and turn off the road wherever they wanted to with their 4x4s. The Coales disagreed, contending that no one needed more than the small path down the center to get to their properties. Even in Texas.

The trial court disagreed with the Coales, and the Court of Appeals explained with some care why the unambiguous grant of the right of ingress and egress — coupled with the evidence that the Scotts needed the whole width of the former airstrip for moving in their own 18-wheelers, garbage trucks, and, yes, even their own mobile homes — meant that the neighbors’ use of the 100-foot wide, 31⁄2-acre right was “reasonably necessary and convenient.”

The Coales didn’t leave the Scotts much space to haul in their mobile home.

Everything’s big in Texas. Even 100-foot wide driveways.

Coale v. Scott, 2007 Tex. App. LEXIS 7171, 2007 WL 2428631 (Tex.App. Aug. 28, 2007). A 175-acre tract of Texas land was conveyed to Bill and Julie Coale in 2004, reserving to some other landowners “the right of ingress and egress on the part of all landowners” a roadway, which happened to be a 100-foot wide abandoned airstrip. After the Coales bought the property, they started placing two mobile homes on the north side of a trail that runs down the middle of the airstrip. They also installed a storage unit on the south side of the trail, as well as fencing, a ranch gate, and a septic system.

The Coales planned to move their parents into the trailer homes. They contended that “neither of these structures prevented the [other owners] from using the old trail that they and others before them had always used to get to their properties.” The property owners who had the right of ingress sued the Coales. The case went to the trial court jury on the issue of the width and location of the “passageway” across the land. The jury found in favor of the plaintiffs, deciding they had the right to use the entire 100 foot-wide tract for ingress and egress to their adjoining properties.

The Coales filed a rambling appeal, arguing that the plaintiffs were only entitled to a way across the Coales’ property that was reasonable and necessary for them to have passage to and from their property and imposes the least burden on the Coales’ property.

The Scotts thought their right of egress was fairly wide.

The jury’s finding was upheld. The Court noted that under Texas law, the terms ingress and egress indicate rights inherent in the owners of the dominant estate to pass through the servient estate. They do not imply the right to linger for recreational purposes. The owners of the dominant estate are entitled to the rights granted by the deed or grant instrument, and no more.

A grant or reservation of an easement in general terms implies a grant of unlimited use such as is reasonably necessary and convenient and as little burdensome as possible to the servient owner. As for the extent of the right, in the case of an unambiguous written instrument, courts will give effect to the intention of the parties as expressed by or as apparent from the writing.

Here, the Court said, the grant expressly provided “[t]his roadway is subject to the right of ingress and egress on the part of all landowners in the above described 173.45 acres tract.” No mention was made of any other rights of use, and none may be implied. The Court saw no reason to go outside of the clear language of the express grant. There was no dispute that the 3.629 acre tract was 100 feet wide. Instead, the dispute centered around what the Coales believed the plaintiffs actually needed to use for their rights of ingress and egress. The Coales argued the plaintiffs were only entitled to a way across the Coales’ property that was reasonable and necessary for them to have passage to and from their property, and that the dirt or gravel road that ran down the middle of the airstrip.

The Coates planned to install their parents in a nice, carefree mobile home.

The Court, however, held that the plaintiffs were entitled to the rights granted by the instrument, and no more or less. A grant or reservation of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as minimally burdensome as possible to the servient owner.

Here, the jury considered the language in the deed, a survey depicting the properties, the legal description of the properties in the tax records, photographs, and other testimony. One witness testified that for the past 20 years, he had turned into his property from any point on the airstrip. There were no gates or fences. He said the trailers the Coales placed on the airstrip impeded his access to his land, and if he were still driving his 18-wheeler, he would possibly drive over the Coales’ plumbing lines. Another witness testified she had used the whole width of the airstrip to bring her trailer into her land. Another witness testified that because of the Coales’ trailers, “you can only go one way. And if you want to pass two ways, you can forget it.”

Previously, cars going in the opposite direction could travel simultaneously by using the entire width of the airstrip. Now, one has to pull over to let the other one pass. Based on the evidence, the Court said, there was legally sufficient evidence to support the jury’s finding that the use of the entire 100 feet of the airstrip was reasonably necessary for the plaintiffs’ right of ingress and egress.

– Tom Root

Case of the Day – Friday, February 9, 2024

Posted on February 9, 2024 by TLRoot tagged.

SECRET AGENT MAN

I have written from time to time about recreational user statutes – state laws that grant immunity to landowners who make their lands available without charge to the public for recreational purposes. To encourage landowners to do this, the laws exempt such landowners from liability for unsafe conditions on the land.

The statutes vary from state to state, but the principle is generally the same: to help forestall “the continual shrinkage of the public’s access to recreational land in the ever more populated modern world.”

Sometimes, the best-intended laws have strange consequences. Today’s case is a perfect example. Conference Point Center is a venue on Lake Geneva, Wisconsin, available for religious retreats, camps and conferences. The public can wander the wooded paths and enjoy the lake view without charge.

Conference Point had some trees badly in need of trimming or removal, so it hired Creekside Tree Service to do the work. When Jane Westmas and her son, Jason, came walking along a path and rounded a blind corner, a badly decayed limb being removed by Creekside fell, killing Jane and seriously injuring Jason.

Conference Point was immune from liability because it was shielded by the Wisconsin recreational immunity statute, Wis. Stat. § 895.52. Creekside argued that although no one knew it, it was really acting as Conference Point’s agent in removing the trees, so it was immune as well. Sort of a secret agent…

A secret agent? The idea returned me to the thrilling days of my boyhood, when I longed to live the mystery-, intrigue- and action-packed lives of Patrick McGoohan and the Robert Vaughn/David McCallum team from U.N.C.L.E.

I have gone on at length before about the difference between an independent contractor and an employee, and how owners want to be sure that tree contractors fall on the independent contractor side of the line. Among other things, an owner is not liable for the negligence of an independent contractor in most cases, so Harry and Harriet Homeowner are better off if Tommy Treetopper drops a tree on the neighbor’s car. But being an independent contractor can be a double-edged sword. Under Wisconsin law, if a landowner is immune, so are the landowner’s employees, officers, directors, and agents. Clearly, an independent contractor is the obverse of an employee. But is it an agent?

The answer to that question – whether Creekside was Conference Point’s agent or not – would decide whether Jane’s estate could even sue for negligence. Whether there was actually negligence or not… that was an issue for another day.

Westmas v. Creekside Tree Service, Inc., 2018 WI 12 (Supreme Ct. Wisconsin, February 7, 2018). Jane Westmas was killed when a tree branch cut by Creekside Tree Service, Inc. fell on her while she and her adult son were walking on a public path through the property of Conference Point Center. Conference Point had contracted with Creekside to trim and remove trees from its property. Jane’s husband, John Westmas, and her son, Jason Westmas, sued Creekside and its insurer, Selective Insurance Company of South Carolina.

Creekside moved for summary judgment on the ground that the recreational immunity statute, Wis. Stat. § 895.52 (2013-14), barred claims against it. Creekside argued it was an agent of Conference Point, or in the alternative, an occupier that qualified as a statutory owner for immunity purposes.

The circuit court agreed and threw out the case. The court of appeals reversed.

Creekside appealed to the Wisconsin Supreme Court.

Held: Creekside was not Conference Point’s agent, and thus was not immune from suit. Generally, owners of property, under Wis. Stat. § 895.52, do not owe a duty of care to keep their properties safe for entry or recreational use. In fact, not only are owners immune, but their employees, directors, officers, agents and “occupiers” of the land are protected as well.

Creekside claimed that it was Conference Point’s agent. To determine whether this was so for the tree-cutting that caused the injury, the Court said, the focus had to be on the level of control that Conference Point had the right to exert over the tree-cutting task that caused the injury. Neither the contract between Conference Point nor any evidence in the record suggested that Creekside had any special, fiduciary duty toward Conference Point.

An agent has a fiduciary relationship with his principal, a consensual relationship where the agent voluntarily places the interests of his principal before his own interests. Likewise, where a principal (like Conference Point) has the right to control the acts of a contractor (like Creekside) that are done within the scope of the agency, an agency relationship is more likely to occur. When an independent contractor has no fiduciary obligations to and is not subject to control by the principal, the court ruled, no agency relationship has been formed. The Court concluded that “an agent is one who acts on behalf of and is subject to reasonably precise control by the principal for the tasks the person performs within the scope of the agency.”

Here, Conference Point did not control or attempt to control the conduct of Creekside’s employees. Control over how trees would be trimmed or removed was retained by Creekside, especially (and crucially) the tree removal occurring at the time of the accident. Therefore, Creekside was an independent contractor rather than an agent and was not covered by the recreational immunity statute.

Creekside still had time for one more play, a “Hail Mary.” It claimed that it was an “occupier” of the Conference Point property and thus entitled to immunity. The Court said the definition of “occupy” in the context of recreational immunity is “to take and hold possession.” The purpose of the recreational immunity statute is to encourage landowners to open land for public use, and, thus, defining a party as an occupier subject to the statute’s protection should advance “the policy which underlies the statute.”

Here, the property was already open for public use, and defining Creekside as an “occupier” would do nothing to advance that. Rather, Creekside’s presence on the property was “mere use” and did not approach “a degree of permanence,” nor did it have any effect on whether Conference Point’s property would be open to the public for recreational purposes. In the few days it was on the property, Creekside moved “from temporary location to temporary location for the limited purpose of trimming trees as needed to satisfy its contract with Conference Point. Creekside was “not responsible for opening up the land to the public,” and indeed had no authority to do so.

– Tom Root

Case of the Day – Thursday, February 8, 2024

Posted on February 8, 2024 by TLRoot tagged.

A MEDIOCRE SAMARITAN

One of the most popular parables in the New Testament was one that Jesus told in answer to a disciple’s question, “Who is my brother?” The tale of the Good Samaritan (and mind you, the Samaritans and Jews mixed like Chargers fans and Cowboys supporters), who found a Jewish man beaten by robbers and left for dead, is taught to countless Sunday School students. The term has even entered the lexicon. Many states have what are known as “Good Samaritan” statutes, laws that prevent a rescuer who has voluntarily helped a victim in distress from being successfully sued for wrongdoing.

Some states have gone further, passing “duty to assist” laws that require people to assist crime victims or those in distress where special circumstances are present.

In today’s case, a woman checked into a hotel. Her husband spoke to her by phone several times during the early evening but then was unable to reach her by cellphone or room phone. He finally called the hotel, and the front desk agreed to send a maintenance worker to check on her. Alas, the maintenance man was unskilled at this kind of welfare check. He opened the room door, saw the room was dark, called out, got no answer, and concluded no one was there.

When the husband drove some distance to the hotel and entered the room hours later, he found his wife on the floor, having suffered a brain aneurysm. Quicker treatment would have led to a much easier and better recovery.

What happens when a person has no legal duty to come to the aid of another, but does so anyway? Does the existence of a duty matter? The trial court thought it did, and threw out Mrs. O’Malley’s claim. The appellate court, however, found that duty did not matter as much as voluntariness.

O’Malley v. Hospitality Staffing Solutions, Case No. G054724 (Ct.App. California, Jan. 31, 2018), 2018 Cal. App. LEXIS 83. A woman checked into a hotel room in the early evening. She did not answer her husband’s calls for several hours. He suspected that she may have been injured. The husband called the hotel, and the front desk sent maintenance worker Ramos to check the room. Ramos reported that no one was there. Hours later, the husband went to the hotel room and found his wife lying on the floor. She had suffered a brain aneurysm.

The couple sued the hotel and Ramos’ employer (a staffing agency) for negligence. The agency filed a motion for summary judgment, arguing that it owed no legal duty to the couple. The trial court granted the motion and the couple appealed (the hotel itself was not a party to the appeal).

Held: The case could proceed to trial. The Court of Appeals held that maintenance worker Ramos’ argument that he had no duty to Mrs. O’Malley that would require him to check the room was correct but irrelevant. The general rule is that a person who has not created a peril is not liable for failing to take action to protect another unless the person has some relationship that gives rise to a duty to act. However, one who undertakes to aid another is under a duty to exercise due care in acting and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking.

For Mrs. O’Malley to make a claim of “negligent undertaking,” she had to show that: (1) the maintenance man agreed to render services to her; (2) the services rendered were of a kind he should have recognized as necessary for her protection; (3) he failed to exercise reasonable care in the performance of his undertaking; (4) his failure to exercise reasonable care resulted in harm to Mrs. O’Malley; and (5) his carelessness increased the risk of harm.

While under negligence, a legal duty of care gives rise to an obligation to act, under the negligent undertaking theory, acting where not obligated to act gives rise to a legal duty. Here, the court said, there were disputed facts regarding precisely what maintenance worker Ramos may have undertaken to do. The clerk at the front desk said that she told Ramos “to knock on Mrs. O’Malley’s room . . . and if she did not answer the door, to open the door and look in and see if she was in there.” Ramos said the clerk had told him simply “to go check on her, to go to her room and see if she’s there.”

Those conversations and Ramos’ knowledge that Mrs. O’s husband was worried she might be injured or sick were enough to permit the inference that Ramos may have understood the apparent urgency of the situation. The risk that Mrs. O’Malley may have been lying incapacitated somewhere in the hotel room (beyond the threshold of the front door) may have been reasonably foreseeable. “Therefore,” the appellate court said, “the scope of Ramos’ duty may have been more than simply opening the door and peering inside what Ramos claimed was a dark room.”

The appellate court said that “a reasonable trier of fact might infer that Ramos assumed a duty to check on whether Mrs. O’Malley was in her hotel room, and if she was there, why she was not answering the phone. If Ramos had such a duty, the scope of his duty would depend on the nature of the harm that was foreseeable. That question must be resolved at trial.

– Tom Root

Case of the Day – Wednesday, February 7, 2024

Posted on February 7, 2024 by TLRoot tagged.

ROADBLOCKS

When we were kids, we watched Broderick Crawford in that black-and-white police classic “Highway Patrol.” Every week, the full-figured, squinty-eyed Crawford — as highway patrol chief Dan Matthews — would pursue the bad guys in his finned Plymouth police coupe interceptor, usually catching the malefactors after setting up roadblocks all over California and barking “10-4” into his mic several times.

We loved that show. But Dan Matthews and his troopers had nothing on the political subdivisions in today’s case. When Mr. Bright’s car was crushed by a tree limb while he was driving down a road in the Village of Great Neck Estates, he got himself a lawyer and sued the town and the county. They immediately started setting up roadblocks worthy of the best 50s-era cop show.

The case seemed pretty straightforward. The plaintiffs argued that the county and village had had notice that the tree was defective. That hardly matters, the defendants retorted, because you, Mr. Bright, never gave us written notice that the tree was defective. The Administrative Code of Nassau County requires that you do so. As for your passenger, who also sued, she had not shown that she had suffered a serious injury, as required by the state’s insurance law. Not very bright, Mr. Bright, the defendants argued smarmily.

Fortunately, the plaintiff was Bright enough. The appellate court made short work of the county’s motion. The county’s prior-notice requirement, it ruled, related to physical deficiencies in roads and bridges, obvious problems that nonetheless might not be known to county officials. If such a requirement were applied to the trees alongside the road, there might as well be no duty imposed on an owner to inspect trees to begin with. Motorists would have had to pick the tree likely to fall on them and write to the county about it before it fell. Lots of luck with that.

Besides, while a gaping pothole in the road is obvious to passing motorists, the same can’t be said for a diseased tree, which is not especially susceptible to drive-by inspections.

As for the state insurance law, the requirement that a passenger prove serious injuries is intended to cut down on suits against other drivers. This case wasn’t about a county employee being reckless behind the wheel, but instead, the case was a simple one of premises liability. The County owned the highway and the tree next to it, the tree was defective. Voila, a lawsuit.

The county’s lawyers set up roadblocks that would put the cops to shame …

So the Court cleared the first set of roadblocks for Plaintiff Bright. So, this is Broderick Crawford, saying, “See you in court.”

Bright v. Village of Great Neck Estates, 863 N.Y.S.2d 752, 54 A.D.3d 704 (N.Y.A.D. 2 Dept., 2008). Mr. Bright suffered personal injuries when a tree limb fell on the car in which he was traveling in the Village of Great Neck Estates. Bright and his passenger sued, alleging that the accident was proximately caused by Nassau County’s negligence in failing to remove a dead or diseased tree.

The County moved for a summary judgment dismissing the complaint on the grounds that Bright had not complied with the prior written notice requirement set forth in § 12-4.0(e) of the Administrative Code of Nassau County and that the County lacked both actual and constructive notice of the purported hazard. The County also sought to dismiss the complaint by Bright’s passenger on the ground that she did not sustain a serious injury within the meaning of Insurance Law §5102(d). The trial court denied the County’s motion for summary judgment.

After Mr. Bright’s car got crushed, the county tried to do the same to his lawsuit …

Held: Denial of the summary judgment motion was proper. The Court observed that prior written notice statutes are intended to apply to actual physical defects in the surface of a street, highway, or bridge of a kind that do not immediately come to the attention of the municipal officials unless they are given actual notice. Here, the Court held, the defect was no more obvious to the motorist than it was to the county, and probably much less so. The prior written notice statute was held not to apply to trees.

Furthermore, the Court said, the County failed to establish that it lacked actual and constructive notice of the hazard tree alleged to exist in this case.

Finally, the Court said, Mr. Bright’s passenger was not required to establish that she suffered a serious injury because she did not allege the County was negligent in the use or operation of the car (which is what the statute addresses). Instead, the allegations against the County related to premises liability. The County doesn’t qualify as a covered person within the meaning of the Insurance Law, which was written to stop the flood of staged car accident lawsuits clogging New York courts.

– Tom Root