[nabs-l] Blind man sues Wienerschnitzel over run-in with tree

Sat Aug 14 06:43:28 UTC 2010

Hi Curt,
Certainly the city and building owners are likely to argue that the injured
party was neglignet and not them.  Negligence means something quite specific
and it works like this.
The tort of negligance has 4 parts and all 4 parts must be true for their to
be negligance.
The alleged negligent party must have:
1.  Had a duty to act in a particular way or duty to refrain from acting in
a particular way:
2.  He must have breached that duty:
3.  some damage or injury must have occurred:
and
4.  the damage or injury must have been caused by the breach of the duty and
this injury must have been foreseeable.

I don't know exactly how high this branch was off the ground, but let's say
that it was 6 feet 2 inches above the sidewalk given that the injured party
was 6 foot 5 and he walked into it.

My first question would be how was the injured party negligent?  What duty
did he have?  Should he have been walking slower?  Should he have been
walking with his arm up at all times to ensure that he not be struck in the
face by low hanging objects?  Should he have not been walking without a
sighted person guiding him?  Should he have been using a guide dog which
might have noticed the overhanging branch?  I can't think of what other
mobility techniques he could have used so I can't see what duty he breached, 
but I will be interested in reading other peoples ideas.

>From the vantage point of the city, the building owner, and the tenant, did
any or all of them have any duty?  Should it have been foreseeable to any of 
them that someone 6 foot 5
inches might come walking along the sidewalk and be injured by the branch? 
I would think so.  Is it
foreseeable that such a person might run into a tree branch extending out
over a public sidewalk?  I would think so.  One could argue that a sighted
person would not run into the branch because they would see it, and how 
foreseeable is it that a tall blind
person is going to come along and run into it?  How about a tall sighted
person walking along the sidewalk at night?  Perhaps there is a streetlight
directly above the store, so day or night the branch is visible to a tall
sighted person.  Is it foreseeable that the streetlight bulb might burn out,
and then the tall sighted person just like the blind person will not see the 
overhanging branch and can be injured by it?
Does the store owner have to both foresee the possibility that a tall 
sighted person will come along, and also that this might happen at the very 
time the streetlight has burned out?  The answer is almost certainly yes.

Consider this.  I remember reading a case in law school where a negligent 
motorist, caused an injury to
a driver in another car.  The injury was not serious, but serious enough
that the injured party was hospitalized.  While in the hospital the injured 
party had minor surgery as a result of the accident.  Medical malpractice 
was committed during the surgery, and as a result of the malpractice, the 
patient died.  The party who caused the minor accident initially was held 
responsible for the damages resulting from the other parties death, because
the court held that medical malpractice is a foreseeable result from 
negligently causing an injury that results in the injured party being 
hospitalized.

In the actual Utah case being discussed it is also likely that the city has
ordinances which require a specific minimum clearance above all sidewalks of
at least 8 feet and above all roads of at least 12 or 13 feet.  This would
mean that if one has a tree with branches over either of these passageways 
lower than permitted, the owner is responsible to remove them, and he would 
also be
responsible for any damage resulting from failure to remove them.

Our legal system as well as some others around the world are really quite 
extraordinary, and even with their imperfections, it is a remarkabel thing 
when you see it unfold in front of you in law school and the way it all fits 
together.  If one gets their notions of law from television shows like 
Peoples Court or Judge Judy, law appears to be very unpredictable and it 
appears that judges simply do what personally strikes them as fair at the 
moment.  This really is not how it works.  Judges make their decisions based 
on the statutes and the interpretations of those statutes by the courts 
which are superior to the court hearing the case.  No matter what weird 
legal case one bumps into, when a lawyer begins researching similar cases 
you will usually find that it isn't weird at all and has occurred tens of 
thousands of times before, and has already been brilliantly analyzed in 
cases going back hundreds of years, and the legal reasoning of the judges in 
those earlier days was as good or better than much that is written today. 
Television shows like those mentioned drive lawyers and judges insane 
because they totally misrepresent the functioning of the legal system. 
There is nothing I would rather discuss than law, so please feel free to 
contact me on or off the list to talk law.  It is always a pleasure.
Best,
Dennis

----- Original Message ----- 
From: "Kirt Manwaring" <kirt.crazydude at gmail.com>
To: "National Association of Blind Students mailing list"
<nabs-l at nfbnet.org>
Sent: Friday, August 13, 2010 8:30 PM
Subject: Re: [nabs-law] Blind man sues Wienerschnitzel over run-in with tree

Dennis,
  But couldn't there be room to argue if this was, in fact, a
hazardous condition or just negligence on the part of the blind
pedestrian?
  With respect,
Kirt

On 8/13/10, Dennis Clark <dennisgclark at sbcglobal.net> wrote:
> Hello Jessica,
> Do you really walk around all the time with your arm up guarding your face
> to ensure that you don't run into anything at face level.  If so, you must
> look quite strange to sighted people, and your arm must be very tired.
>
> Seriously though, speaking as a lawyer, the law is quite clear concerning
> hazardous conditions, and when injuries result from hazardous conditions
> the
> party or parties who created the condition are responsible for the
> injuries.
> The only question is which party is responsible for the hazard in this
> particular jurisdiction, because this varies from state to state.  The
> responsible party will be either the city, the building occupant or the
> building owner, or possibly a combination of all three.  The lawyer
> representing the injured party does not get to choose who he believes is
> responsible, because that is a decision for the court.  As a result all
> possible responsible parties must be sued, and the case will be dismissed
> against the non responsible parties, but this must be done by the judge.
> If
> the attorney were to decide for example, that in his opinion only the
> building owner is responsible and he then gets to court and the judge says
> that the city is actually responsible and the attorney did not include the
> city in the suit, the attorney has committed malpractice.  This area of
> law
> is called torts, and this is how it has worked for hundreds of years in
> England, Canada and the U.S.
> Best,
> Dennis
>
> ----- Original Message -----
> From: "Jess as Mobile" <jess28 at samobile.net>
> To: "'National Association of Blind Students mailing list'"
> <nabs-l at nfbnet.org>
> Sent: Friday, August 13, 2010 7:43 PM
> Subject: Re: [nabs-l] Blind man sues Wienerschnitzel over run-in with tree
>
>
>> Hi All,
>> This is ridiculous   the guy should have been using not only his cane but
>> he should have also had his arm up in a protective way so that he knew
>> the
>>
>> tree was going to be coming up. The city may not be able to do anything
>> because especially if the tree roots are going under the sidewalk it
>> would
>>
>> most likely cost them to much to have to cut up the sidewalk pull out the
>> tree and redo the sidewalk. I lived on the West Side of Salt Lake for
>> five
>>
>> years. And, I did see that sometimes.
>> Jessica
>>
>> -----Original Message-----
>> From: nabs-l-bounces at nfbnet.org [mailto:nabs-l-bounces at nfbnet.org] On
>> Behalf Of Jedi
>> Sent: Friday, August 13, 2010 7:31 PM
>> To: nabs-l at nfbnet.org
>> Subject: Re: [nabs-l] Blind man sues Wienerschnitzel over run-in with
>> tree
>>
>> The tree could be an annoying obstacle for anyone, particularly tall
>> people. And yes, it is true that tall blind people who don't use guide
>> dogs or some sort of hand guide device/echolocation are going to miss
>> those overhead branches. However, suing could set a bad precedent as it
>> would reaify the notion that obstacles of any kind are hazardous to
>> blind people because we are blind; the public may take this incident
>> and generalize it to all obstacles whether they're really an
>> inconvenience to one/all of us or not.
>>
>> Respectfully,
>> Jedi
>>
>> Original message:
>>> I thought this story was interesting. What do you think? Is the
>>> lawsuit appropriate?
>>
>>> Arielle
>>> Blind man sues Wienerschnitzel over run-in with tree
>>
>>> http://www.sltrib.com/sltrib/news/50092926-78/tree-reynolds-wienerschnitzel-suit.html.csp
>>> By bob mims
>>
>>> The Salt Lake Tribune
>>
>>> Updated Aug 12, 2010 10:59PM
>>> All Nathan Reynolds wanted was a hot dog. Instead, as the blind man
>>> walked toward a Wienerschnitzel restaurant last year, he got a face
>>> full of tree — and severe neck injuries.
>>
>>> Now, the 36-year-old Utah County man has filed a personal injury
>>> lawsuit against the owners of the Wienerschnitzel at the corner of
>>> North Temple and 800 West in Salt Lake City.
>>
>>> The complaint contends that on June 9, 2009, Reynolds — who had been
>>> on his way to the Utah School for the Deaf and the Blind — got off a
>>> bus near the Wienerschnitzel to get a meal. As the 6-foot-5 man
>>> navigated toward the entrance with his cane swinging in front of him,
>>> he hit the tree, which the suit contends had encroached on the
>>> sidewalk.
>>
>>> “The tree struck him squarely in the face and knocked him to the
>>> ground,” states the suit, filed Tuesday. “The tree was allowed to grow
>>> in such a way that it was impossible for Mr. Reynolds to detect its
>>> presence by use of his cane.”
>>
>>> The suit argues that because the tree was “rooted in the ground far to
>>> one side of the sidewalk and [had grown] diagonally across the
>>> sidewalk,” it had become a “clear hazard.”
>>
>>> Reynolds seeks unspecified reimbursement for past and future medical
>>> expenses, lost income, and pain and suffering stemming from alleged
>>> negligence in the maintenance of the tree.
>>
>>> Along with Grundmann Enterprises of South Jordan, the owner of the
>>> eatery, Reynolds’ 3rd District Court suit names Salt Lake City Corp.
>>> and five John Does as defendants. Reynolds seeks a jury trial; 3rd
>>> District Judge Sandra Peuler has been assigned the case.
>>
>>> Daniel J. Grundmann of Grundmann Enterprises declined to comment
>>> Wednesday, noting he had not yet been served with the suit.
>>
>>> Tom Amberger, vice president of marketing for Irvine, Calif.-based
>>> Galaradi Group Inc., which runs Wienerschnitzel, also declined to
>>> discuss the case. “We are unaware of this lawsuit and will look into
>>> it,” he said.
>>
>>> Ed Rutan, city attorney for Salt Lake City, would not comment, either,
>>> citing the pending nature of the litigation.
>>
>>
>>> __._,_.___
>>
>>
>>> --
>>> Arielle Silverman
>>> President, National Association of Blind Students
>>> Phone:  602-502-2255
>>> Email:
>>> nabs.president at gmail.com
>>> Website:
>>> www.nabslink.org
>>
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