Friday, January 13, 2006

Fresh Caselaw

First, I'll get the semi-serious stuff out of the way: here are new Iowa Supreme Court cases up today: Alexander v. Groth is an inter-relative fight when a sister sold off the house after mom's death and didn't split the proceeds. Mom had transfered the house into sis' name before she died, and then sent to all the other kids that it was just a tax thing, and she expected sis to split everything evenly when she sold the house after Mom's death. The Court found the letter sufficient to create a trust, and held Sis to her promise. Iowa Supreme Court Disciplinary Board v. Reilly appears to be a fairly obvious revocation of an attorney's license, based on stealing a client's money and then kiting checks to try to cover the loss. The Supremes frown on that kind of thing. The last one, Summy v. Des Moines is rather interesting: A golfer on the eighteenth hole of Waveland Golf Course got beaned by someone teeing off from the first hole. The golfer teeing off did not yell "fore," 'cause he didn't see anyone over on 18. The city wanted to argue that the whole thing was the golfer's fault, that the negligence in how he teed off and the failure to yell "fore" was the proximate cause of the loss, and the injury was one incidental to golf. The problem? Section 344 of the Restatement of Torts states:
A possessor of land who holds it open to the public for entry for his
business purposes is subject to liability to members of the public while they
are upon the land for such a purpose, for physical harm caused by the
accidental, negligent, or intentionally harmful acts of third persons or
animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done,
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

In other words, if you open up your land to the public when you know or should have known that people or animals are going to be doing negligent or dangerous stuff on your land, you have the duty to warn people about the hazards. The city wanted to argue proximate cause despite this, saying the act of the third party golfer was solely responsible, but the judge didn't let them. This may sound unfair at first, but if you think about it, if the alleged harm is the failure of the city to protect the public from the foreseeable acts of third parties, and the city is allowed to counter that by arguing that it's the third party's fault, the argument becomes circular and eviscerates the provision as written and render it utterly meaningless. Which is probably why the Restatement includes this principle:
If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.

The City also argued immunity based on Iowa Code Section 670.4(10), which protects municipalities from liability from negligently issued permits (i.e. if the State gave a hunting permit to someone who shouldn't have one and that person caps somebody). They claimed the golf pass issued to the golfer's employer counted as a "permit." Not so much. Finally, the City argued that jury selection was bogus because the Court didn't allow anyone who owned property in Des Moines onto the jury. The Supremes agreed this was improper, but the city failed to show how that impropriety would've affected the outcome of the case, so the point was insufficient to overturn the jury verdict. Oh, and if you still think there was no way the city could've been at fault for this, consider the following:
At trial Summy introduced evidence that the design of the golf course called for a tree barrier between the first and eighteenth fairways. Although
such a barrier had existed at one time, sixty to eighty mature trees in the area between these fairways died in the 1960s. In June 2000, there were a few small trees between the first and eighteenth fairways, but according to the plaintiff’s witnesses these trees were not a sufficient protective barrier. Even one of the City’s witnesses acknowledged there was a hazard in the area of fairway eighteen from being hit by a shot off tee number one. Summy’s experts testified that the two fairways had overlapping areas of play and that it was absolutely foreseeable that golf balls hit from the first tee would travel into the area where Summy was hit due to the overlapping playing areas and the lack of heavy trees between the fairways. The experts also identified several ways in which the safety in this area could have
been improved. In addition, evidence was presented that the City had no inspection or safety program, and no one was responsible for identifying hazards on the course so protective measures could be implemented.

Sounds like the city knew about the risk, had taken precautions, but didn't really give a damn when the trees went down. Until someone got hurt. Or am I overreacting? Golfers?

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