Category Archives: Tort

Grandma in The Devil’s Den (assumption of risk/happy halloween)


What happens when an 84 year-old goes through a haunted house with her family members and gets hurt?  A lawsuit happens.  I would love to have been the judge writing this opinion and I think the judge who did write it enjoyed himself a bit.  The attorneys all argue about the following:

1) Did the haunted house operator provided enough supervision?
2) Was the victim was pushed by other scared patrons?
3) Did the victim fall down because she was scared?                   
Assumption of Risk
The judge says all of this is unimportant.  He says she assumed the risk when she entered the haunted house and assumption of risk bars any recovery.  In California, this type of “assumption of risk” is termed “primary assumption of risk”, in which the defendant owes no duty to protect the plaintiff from a particular risk of harm, and the lack of duty operates as a complete bar to recovery.  The case law regarding primary assumption of risk is rather developed in some areas (like competitive sports) and remains undeveloped and unclear in other areas, leading to unpredictability.  Whether or not primary assumption of risk operates as a bar to recovery depends on the context and the defendant’s role in, or relationship to, that context. 
The judge in this particular Louisiana case analogizes walking through a haunted house to walking through a crowd at a horse race, and finds assumption of risk applies.  So why does he talk about the haunted house in some detail?  Because it’s fun.
Taken from the case:
The facts are that two vacant houses in the City of New Orleans were made to take on an appearance of a haunted house. The rooms of both houses were decorated with ghosts, goblins, coffins and various other Halloween paraphernalia, so designed to frighten or startle the patrons. There were also accompanying sound effects which one would except at such a carnival. An admission charge was made for each who entered. Patrons entered the first of the two houses and made their way in single or double file from room to room, while viewing the various exhibits as they proceeded. They exited the first house, proceeded through a cemetery area provided by a yard separating the two houses and into the second house. The final room which the patrons visited was known as the ‘Devil’s Den.’ It was in this room that plaintiff was injured. As is to be expected, the light inside the room was dim. While everyone gazed toward the make-believe devil’s den, a person disguised as the devil was mechanically projected approximately six to ten feet into the room on an overhead track. Plaintiff was either jostled (plaintiff’s version) to the floor by the estimated 25 patrons in the room, or she fell (defendant’s version) in trying to get away from the area when the ‘devil’ was projected into the room.
Plaintiff claims that the failure to provide employees in the ‘Haunted House’ to supervise and to police the movement of the patrons constituted negligence. We find no merit to this contention. The trial judge, in written reasons, made the following conclusions of fact:
‘There were at least three members of the sponsoring group stationed at the entrance to the ‘Devil’s Den’ to limit the number of people who went in. There was also a special policeman on duty inside to control the movement of guests in and out. The room was of spacious dimensions, and no more than approximately 20 people were allowed in the room at any given time.’
The record supports these factual determinations. Nevertheless, it is clear in the instant case that plaintiff’s assumption of the risk in going through this attraction bars her recovery. Particularly is this true since there is no claim or suggestion that the defective condition of the premises or unforeseen event caused the accident, other than the jostling by the young patrons.
Whether Mrs. Bonanno fell as a result of being jostled by the crowd or in a frightened attempt to get away from the ‘devil’ is unimportant. She obviously had knowledge that she could anticipate being confronted by exhibits designed to startle and instill fear. She had to realize that the very nature of the attraction was to cause patrons to react in bizarre, frightened and unpredictable ways . It would be inconsistent in this case for this court to allow plaintiff to recover for damages which resulted from her being frightened, precisely the effect that the ‘Haunted House’ was calculated to produce.

Bonanno v. Cont’l Cas. Co., (La. Ct. App. 1973)285 So. 2d 591, 591-92.
(Sidenote:  The actual event took place in 1968, the same year Halloween that Michael Myers supposedly first killed in the movie Halloween.)
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Loss of Use: why every car is always your daily driver, you never sign a long term storage unit contract, and you fix your boat in spring

When someone damages your property you can always sue for replacement or repair.  That’s pretty straight forward.  What about the fact that you’re without your property?  Loss of use damages are damages attributable to the inability to use property, premises, or articles due to someone else’s negligence or tortious conduct.  So, when can you get loss of use damages?  How much can you get?  What the heck does this have to do with daily drivers and storage units?  Bear with me.

Mondragon (Sad Dad)
In Cirilo Mondragon v. Morris Austin (1997) 954 S.W.2d 191, a father (Morris Austin) purchased a car for his daughter to drive while she was away at college.  Neither Morris nor his daughter ever used the car.  Two months after purchase, Mondragon had a few too many drinks and ran into Morris’ recently purchased car (while driving backwards).  For whatever reason, Mondragon’s insurance company denied the claim.  Mondragon also refused to pay.  Morris had an unusable car, a daughter without a car, and Morris was broke.  Close to two years later (and the statute of limitations) Morris sued.  He said he had been too broke to fix the car and Mondragon owed him for the damage to the car, but also for the loss of use of the car for the last two years.  The court found Morris suffered $8,020 in loss of use damages, $1,716 in prejudgment interest, and $2,752 in repair costs.  Essentially $8,020 was the cost of utilizing a comparable rental car for the two year period.  Note: in most jurisdictions, the fair market value of the item itself is not a ceiling on loss of use damages.
Metz (Classic Car Collector)
In Metz v. Soares (2006) 142 Cal.App.4th 1250, John Metz was a classic car collector.  He took his 1971 Jaguar XKE to the shop for repair.  First of all, I think a 1971 Jaguar XKE looks like a shoe.  Second, if you are going to collect a 1971 British car, buy the inaugural year of the Corniche like a big boy.  I digress.  The body shop left the car out in the rain with the hood open and the car was ruined.  Metz sued for loss of use damages.  The court denied Metz’s loss of use damages because the car was not regularly used.  He only drove it once in a while on the weekends—and the court found that was not frequent enough to merit loss of use damages. 
Conqueror (Sad Yacht Owner)
In The Conqueror (1897) 166 US 110, a pleasure yacht was wrongfully seized and detained for five months during fall and winter by the collector of customs (US Government).  The Yacht owner sued for loss of use of their yacht.  The court found that the government owed the yacht owner no money, because the yacht would not have been used during fall and winter anyway because it was too cold.
Shearer (Storage Unit Holder)
In Shearer v. Taylor (1906) 106 Va. 26, a man had furniture in a storage unit under a six month contract.  His furniture was wrongfully detained and he was unable to use it.  The court found Shearer had no loss of use damages because the six month contract indicated he didn’t plan on using the furniture for that length of time anyway.
What does this all mean?
Like Morris Austin, even if you have not used a car, but plan on using it frequently a court will give you loss of use damages.  It will even give you loss of use damages if you’re broke and you let the damaged car sit on the side of your house for two years.  But you won’t receive  any loss of use damages if it appears as though you haven’t been using your car very much—like John Metz.  They won’t give you less loss of use damages, they simply will give you none at all. 
So, if you ever get into an accident the car you are driving is always your daily driver.  If you ever drop your car off at the shop, the car you are driving is always your daily driver.  Don’t brag about how you own five cars.  The Conqueror indicates that you may not want to drop off your boat at the mechanic at the end of season, but rather may want to wait until the beginning of season to fix your boat.  If you ever get a storage unit never sign a long term storage contract and also indicate somewhere that you plan on getting your items out frequently. 
But it’s not like planes crash into storage units or anything.

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Let your neighbor ride that horse across your backyard, but watch out for those mounted police

No trespassing signs.  Barbed wire.  Concrete blocks.  Landowners everywhere are concerned about premises liability.  I frequently drive by an empty lot in Camarillo, CA that dirt bike riders use to romp around in and the inner lawyer thinks about putting up a post with a business card holder on the edge of the lot.  In Camarillo, many areas that used to be bastions for hikers, horseback riders, and dirt bikers are now off limits.  Besides increased development of places like Spanish Hills, Sterling Hills, and Santa Rosa Valley, local residents have increasingly blocked portions of their property that used to “cut through” to horse trails.  These landowners are understandably concerned about liability, however, local residents are increasingly unable to enjoy the rural lifestyle traditionally afforded in the Ventura County area.
But do landowners really need to be so concerned?  Maybe.
Little known California Civil Code § 846 (as passed in 2007) comes to the rescue of both the recreationally-inclined and landowners.  Stop the barbed wire!  The statute effectively gives landowners immunity from liability for accidents that occur on their property as long as the user of their land was conducting a recreational activity and there was no consideration (payment).  Great!  The statute gives examples of what recreational activities are covered, but the list is rather all-inclusive, including, “such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.” 
So landowners can relax and cut the barbed wire right?  Well, not so fast.  There is no case on point as to whether § 846 trumps common law liability for creating an attractive nuisance.  Arguably, having BMX moguls on one’s dirt lot are an attractive nuisance that encourages dirt bike riding and an attractive nuisance action may still be valid in spite of § 846.  In addition, landowners still have to be concerned that opening their properties up to use by others may create easements.  As a result, they may be unable to stop future use or their properties may have a lower value upon sale.  There is also the strange, but interesting non-recreational liability exception to § 846.
In a recent Los Angeles case, the defendant was a nonprofit organization that owns several properties.  On the edge of one of the properties was a severe drop in topography.  The land suddenly dropped 10+ feet.  There were no signs or fences blocking entry from the other side of the property.  Nearby the property a burglar was being chased by a mounted LAPD officer.  Yes, LAPD does still uses mounted officers.  The burglar jumped onto the property owned by the nonprofit, across the portion where the 10+ foot drop in land is located.  Riding in the dark, the mounted officer took his horse over this drop, only to have to horse roll on top of him, ultimately paralyzing him.  Section 846 was of no help to the nonprofit, since the statute only covers recreational, not occupational horseback riding.  As sad and devastating as the accident was for the police officer’s family, the accident was also a pecuniary disaster for the nonprofit.  

So, don’t build  an attractive nuisance, put up a notice instructing parties that there is no easement created and that they are using the property against your wishes (even though you are secretly okay with it), keep out mounted police officers or anyone else not acting recreationally, and you should be good.
Or you could just build a fence.

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Texas is so conservative they adopted a law just like California

Texans are upset about lawsuits hindering business and increasing costs.  This is the latest chapter in the book of Regional Trial Lawyers Association versus Regional Conservative Business Group for Tort Reform.  I understand both sides of the fight.  Anyone can slap on a neck brace, pour a bottle of water on a few steps, call an ambulance, file suit, and settle.  (I am not recommending fraud, don’t get me wrong).  Also, if we restrict plaintiffs to the point that harmed parties are afraid to file valid claims…such as the possibility of paying the loser’s attorney fees, the system will fall apart.  
Originally the Texas House was seeking a quasi-English “loser pays” system.  What the Texas Senate passed looks almost exactly like California Code of Civil Procedure § 998.  The new Texas law would “penalize a litigant for rejecting a settlement offer that is greater than what a judge or jury awards at trial,” as the Wall Street Journal puts it.  In addition, it would create penalties for filing frivolous suits.  998 is more of a settlement device than an anti-fraud measure, and can be used by both plaintiffs and defendant’s alike.  Congratulations Texas, you have passed a law just like California’s.  The media seems to be getting things wrong.  The Wall Street Journal article on the law was titled “Texas Legislature Adopts Loser Pays,”  but then goes on to say, well not really.    The article is available here: http://blogs.wsj.com/law/2011/05/26/texas-legislature-approves-loser-pays/
 
I had a conservative friend who saw the press coverage come up to me and say, “did you see the new loser pays system in Texas, how about that?  Maybe now the frivolous suits will stop!”  I had to inform him that Texas failed to pass the loser pays part of the loser pays law…that it passed something that looked just like California law, and that in spite of § 998, California is still the number one state in the nation for fraud.  So “conservative” Texas, welcome to the club!

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