Step on the Ball
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At one time or another, we have all been admonished by the cliché “get on the ball.” During my teenage years, my summer and weekend jobs were to work in our family logging operation as a swamper, choker setter and chaser. During the summer, logging operations were often shut down when the relative humidity drops and the danger of forest fires rises. In order to maximize production, logging crews would start just before dawn and work until mid-afternoon. After 6 or 8 hours of swinging a double bladed axe or pulling 80 pound chokers and hooks, I could often be found standing around with my hands in my pockets hoping the work day would soon end. When my dad discovered me in this attitude, I knew I would hear a logger’s version of “get your hands out of your pockets and get on the ball.” While the actual language is too graphic to repeat here, the meaning was clear: get busy and do your job.
A decade or so later, after college and graduate school, I was in flight school trying to learn how to recover from a stall and tail spin. There is an old saying among pilots that flying is 95 percent boredom and 5 percent sheer terror. Tail spin recovery falls in the latter 5%.
Planes have a minimum required speed to stay aloft. This is called the stall speed. If the aircraft flies slower than this speed, there is insufficient lift to support the plane and it simply falls out of the sky. Usually flying just above stall speed and attempting a steep turn will cause the plane to stall. Recovery requires a counter-intuitive action of pushing the yoke forward as one would do in a dive. This drops the nose, increases airspeed and reduces the angle of attack thereby increasing lift. If the aircraft starts to spin, yaw or lateral movement is corrected by the rudder. The amount of rudder movement is indicated by a turn and bank indicator similar to the 
one shown at the left. The amount of bank is 
depicted by the position of the black ball in the tube at the bottom. To correct the yaw or skid you step on the rudder pedal on the same side as the position of the ball; You Step On The Ball. Again this is counter-intuitive. You are stepping on the rudder pedal on the low side of the cockpit. However, the two corrective actions: dropping the nose and stepping on the ball, will increase both air speed and correct attitude thereby increasing lift. You are not as likely to fall to the ground.
This brings us to our pithy application to the law.
I think there has been a pandemic of “hands-in-the-pockets” syndrome. In the past six months about 45% of my new cases that are at least 3 years old and some more than that. I have a couple that are pushing the 5-year statute of limitation for prosecuting the case. Often extensive delays in developing the case result in lost evidence, missing witnesses, subsequent changes to the accident site and loss of recall of events. I have one case involving a minor which is now 8 years post accident. Fortunately, in this case, the conditions of the accident site were preserved on film; however, dimensions must be made by photogrammetrics and some cannot be determined at all. To have the best chance at success, the case has to be documented and evaluated as soon as possible.
Each case has its own stall speed. Discovery and preparation must in constant motion. Cases just sitting on the shelf often have missed procedural deadlines some of which can be fatal to the case. Personal injury cases must be pushed along in a timely manner; they do not float gently through the air like a child’s balloon, but glide like a brick unless a real effort to advance them is sustained. If the case is in a stall and spinning out of control, it is time to push on the yoke and step on the ball; mercilessly evaluate the case; find the missing pieces and gain control once more. (I will be happy to send an email copy of my case evaluation checklist from Slip and Fall Practice. Just send an email to Turnbow@turnbow.com or post a comment with the request.)
Take Time to Spread Your Wings!
The 2009 Slip and Fall Practice Supplement is finished and ready for shipment. Inspections in Sacramento, Denver, Tucson, Reno, San Diego and Los Angeles are finished. Reports, declarations and motions are up to date. The calendar is clear for a couple of weeks and I am outta here! The Sierras are calling. Kay and I, Cody and Sweet Annie are off to the mountains.
We were in the Eastern Sierra for the Memorial Day weekend. While yard work and rose care took some of our time, we were able to go up to the high mountain lakes a couple of times. Now comes the tale:
We headed west up Highway 168 to check the conditions in South Lake and Lake Sabrina. Bishop Creek was cascading down the canyons fed by the spring runoff from the snow melt. The falls from the North Lake outlet was spectacular, but South Lake was only about 30% full. It was about noon time when we entered the parking lot to Lake Sabrina. The lake was about 70% full; the level is reported to be rising about one foot each day. Since we were about 18 miles west of Bishop, high in the mountains, we wondered where we could find lunch or at least something to snack on besides the engergy bars in my backpack.
There is a small bait and tackle shop at the lake that we always had ignored before, but this time the lure of snack food drew us in. To our surprise and delight there was a great small restaurant inside with a terrific view of the lake and snow covered mountains. A deck with tables ran along the lake side of the building.
From the deck, the lake and mountains were neatly framed by a lone tree on the end of a small peninsula; I grabbed by camera and stepped out on the deck to compose the shot. As I moved towards a small stairway, one of the guests warned me to watch my step; at the base of the stairs was a large moth just out of its chrysalis. The newly morphed moth is shown above.
I thought the difference between the moth’s drab color and the wood deck would make an interesting shot. After burning off a few frames, lunch beckoned. About half-way through my sandwich, one of the guests came in, all excited, and wanted me to come out and see what happened to the moth. In order to dry its wings, the moth spread them out. The result is shown below.
The difference of a hour permitted this ceanothus silk moth to go from drab to beautiful. I am often a victim of my own mismanagement of time. We hurry along trying to perform tasks and duties that demand our time and attention often unaware of the magic and beauty of nature. We need to take the time to spread our wings; we may not make the transition from drab to beautiful, but we can see and appreciate the bounty and beauty that God has placed before us.
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There Must be Something in the Water!
Fifty years ago this month was my maiden voyage into the world of law and forensics. As a low ranking staff member in the Department of Agricultural Chemistry at Oregon State University, I was an acting supervisor of several technicians and graduate students who performed routine testing and analysis of forage and blood/tissue samples in support of research projects into a number of animal and human related studies in heavy metal and other chemical toxicology. With a major interest in biochemistry and physiology, I found myself sometimes at odds with the laboratory management, scheduling and administration requirements of my job. I loved to “butt my belly against the bench” performing “wet chemistry” analysis and method development. In these early days, before instrumental analysis, long complicated procedures were necessary to determine the levels of common toxins in biological material. One of the most tedious was the determination of the element fluorine in forage or grass.
I developed a modified method which cut the time down to about 1/2 and did not sacrifice accuracy, so my section ran a series of critical tests for counsel in a case involving an aluminum manufacturing plant and an abutting pastureland. The hydrogen fluoride fumes from the plant drifted onto the pasture; the farmer’s cows ate the grass; the level of fluoride was toxic; the cows died; and the farmer sued the aluminum manufacturer. Because of diversity, the matter was heard in Federal District Court. Because of some political pressure, the matter was expedited with an advanced trial date. Typically, only department heads, or full professors would testify in civil trials. As luck would have it, the department head had been on sabbatical in India and contracted dysentery and was unable to testify. I drew the short straw and had to appear to document the testing and verify the accuracy and precision of the testing methods. Defense counsel took a big risk of using a young, inexperienced lab rat who knew the subject matter instead of an older, experienced professor who had no hands on experience in either the actual testing or methodology. I survived the ordeal and within a couple of years was on the stand a couple of times a month in civil and criminal cases.
Many years ago, I had a case in a rural Mono County where the plaintiff’s attorney also had to make a hard decision. This case had everything; a sympathetic plaintiff, good damages, negligence per se based on a building code violation; and actual notice based on the testimony of an eye witness who told the defendant of the acute slipping hazard hours before the plaintiff’s fall. Unfortunately, this witness also testified that the plaintiff ’s conduct was substantial factor in the causation of her fall because she was walking “too fast.” There was a substantial defect in the construction of the handrails of the subject stairway; the property manager had not removed an accumulation of ice and snow from the common areas of the building; the plaintiff was a guest of a weekend renter of the condominium unit.
The only testimony of the plaintiff’s walking speed was the eye witness. The defendant admitted that he knew the stairway and landing would be slippery when covered with ice or snow. The question for the attorney was whether to call the eye witness to establish actual notice or to rely on the owner’s knowledge of the potential hazard and lack of inspection and removal. These were the days when assumption of the risk and contributory negligence were viable defenses before they were merged into comparative fault. The plaintiff called the eyewitness; the jury found for the defendant who argued that the plaintiff knew of the slipping hazard and did not take appropriate precautions for her own safety.
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Mono County Courthouse, Bridgeport, California
Look Over Your Shoulder!
Some of the best shots are the result of careful planning taking into consideration background, lighting, camera angle, extensive calculations of location of the sun at a given hour and selection of the right camera body, lens, filters, tripods, etc. Other good shots just happen.
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In this case, I was returning from two day investigation of a railroad injury case that involved several alleged causes of injury, cumulative stress syndrome for improperly maintained (and designed) switches, moving awkward and heavy shoring and dunnage and a fall down an interior stairway in a locomotive repair facility of a short-line railroad. The ergonomic studies of the physical stress experienced by the plaintiff, an Engineer, Conductor/Switchman were brilliantly done and eventually presented by an excellent biomechanical engineer and egronomist, Dr. Wilson “Toby” Hayes. My primary task was to evaluate the interior stairway and correlate the physical defects with the mechanics of fall and then address standards of construction and maintenance. The relatively dark locomotive service and repair shop sucked up light like a sponge. I didn’t bring the proper two-stop soft-edge neutral density filter to control window glare, so I had to rely on a series of photographs with a modest amount of fill flash. After about 30 or 40 exposures, I had court evidence quality photographs that would illustrate my technical testimony, but while they were technically accurate, they were flat, uninspired and frankly dull. As a forensic engineer, I had what I needed, but as a photographer the photographs left a lot to be desired. Good composition often adds interest and impact to mundane photos.
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On the long 300 mile drive home, I kept a sharp eye out for photo subjects that would be artistically pleasing. I was too tired and discouraged to appreciate probably dozens of great set ups. Finally, about 3 miles from home, I was crossing the dry Mojave River. As I checked for traffic in the rear view mirror for a lane change, I noticed some great color in the western sky. Over my shoulder I could see the beginnings of a great sunset. Not the fiery red of most of our desert sunsets, but a rich gold. I drove off the road near a small grove of Joshua trees which would frame my sunset and managed to get off 3 or 4 shots before I lost the light.
The photo above was one of the keepers. I nearly missed the shot because I was so intent of looking ahead, I forgot to look over my shoulder and behind. As an optimist, I always look ahead for the best my world has to offer, but I often fail to look behind to see and appreciate what has already been. When I was a small child I used to listen to an early morning radio show on KOIN (Portland) where the host, Johnny Carpenter, closed each broadcast with a short prayer for our troops fighting in the South Pacific and Europe and this saying: “live well this day, for each day well lived makes each yesterday a dream of happiness and each tomorrow a vision of hope.” Look over your shoulder sometimes; the beauty is often there to be remembered and appreciated.
Don't Kick the Sleeping Lion
I was rummaging through some old photographs and found one I took a couple of years ago. I think this one will illustrate a lesson in trial tactics. Getting this shot was truly a serendipitous event; I was trying to capture an early moon rise when I discovered this old male lion taking a late afternoon nap. A large debt of gratitude is owed to Carl Ziess for making 500 mm f2.8 lens for my camera because without it I would never get close enough to capture a shot like this one ( I am neither that brave nor crazy!) . Now back to the lesson:
In the New Testament (Acts 9:5 and 26:14), we are cautioned about “kicking against the pricks.” No, it is not the kind you are thinking, but an archaic term for “any of various pointed objects such as a thorn or goad.” Now that I think about it, it is probably good advice regarding the other kind too. My grandfather, who used to tell me wondrous stories of his youthful adventures, had a saying with a similar meaning: “Don’t kick a sleeping lion!”
A tactical error often made in the courtroom is to vigorously attack the opposing party on a point or circumstance that has little probative value, but has great dramatic effect. This often involves issues of personnel behavior and lifestyle. Sometimes the lion awakes and bites your foot off.
One case that come to mind involved an illegal immigrant that was injured on the worksite of a public construction project. The plaintiff suffered a fracture of his left femur, a fractured pelvis, crushed left testicle and injuries to his left wrist and hand. The plaintiff had just been released from a 1 year jail sentence for robbery and aggravated assault. With no family or resources, he spent most of night in a discount movie theater; when the movie closed, he sought shelter with his companions (2 liters of beer) under a 15 ton street roller. At 4:00 AM, sleeping soundly, he did not hear construction workers start the roller’s engines. The roller moved forward toward the loading ramp of a semi truck and trailer rig crushing the plaintiff into the ground.
During the course a jury trial, it was revealed that after the incident the plaintiff had been deported and granted special dispensation to return for the purpose of this trial; that the public agency and its contractors did not follow customary safety practices before moving equipment; that the plaintiff was trespassing on the construction site and that he was intoxicated at the time of the accident.
After the plaintiff rested, the court denied a motion for non-suit stating that there were issues of comparative fault and that while the defendant made a persuasive argument for assumption of risk, state law merged that doctrine into comparative fault and therefore it was an issue properly decided by the jury. From the plaintiff table, it looked like liability was shaky and damages past medical specials would be hard to prove.
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Then during final arguments, the defense attorney kicked the sleeping lion. He attacked the plaintiff not only for being a trespassing convicted felon and for being intoxicated, but attacked the plaintiff for his cultural and racial background, his alien status and told the multi-racial, multi-ethnic jury and the 2nd generation Japanese-American judge that “people like him (immigrants) come to our country and abuse our system, receive our bounty and then seek justice from our courts….the only justice he deserves was what he got; to be deported back to his country to be with his kind of people.” The judge and jury were not impressed by his arguments. He turned a wobbly case at best into a sure-fire winner for the plaintiff. The jury returned a verdict for $625,000.
Reflections
Sometimes there seems to be no end of the writing I must do each month. In the first 3 weeks of March, I have written over 40 thousand words in liability analysis reports, plus an additional 20 thousand on this year’s supplement to Slip and Fall Practice. Each winter and spring is catch-up time for all of regular chores and the special ones that seem to pop up out of nowhere. I still have another 70 to 80 thousand words to go before the 2009 supplement is finished. With case travel to Northern California, Northern and Southern Nevada, Texas, Michigan and Canada scheduled for the next couple of months, I will be pushed a little to finish the manuscript for early sumer publication.
Case evaluations now take much more time since I am now cross referencing scholarly and scientific papers and treatises in the body of the reports. I spend more time now in research and study than when I was in graduate school.
On stormy weekends, like this one, I try to take a break from writing and sit back and reflect on both the profession and my own plans for the future. By now, regulars know my motto: Ancora Imparo ( Yet I learn!) so my study into the research in human behavior and safety interaction is likely to continue well into the future. The law, of course, is a dynamic being and demands constant review.
My escape from all of this is to take my best friend, Cody, and a camera or two and a handful of lenses and wander off into the wilderness. When I do not have the time to get up to our Eastern Sierra home, a local substitute for beauty is needed. My wife and I, and a couple of dogs drove to the northern slopes of the San Gabriel Mountains in the Angeles National Forest where we found Jackson Lake nestled in a small valley. The lake has a healthy growth of tule and cattails. While sitting along the bank near the still water, I noticed the reflections of the plants in the water. It was pretty, but then magic happened; a male Mallard duck swam through the small lagoon creating ripples in the water. The photograph above is the result.
Even ordinary pretty things can become something wonderful when an innocent or even trivial event happens to stir things up, often resulting in the unimagined.
Conventional Wisdom
This is another photograph from my book, Eastern Sierra. I was looking for photo that would illustrate the point that sometimes conventional wisdom and preconceived notions could result in the loss of a great shot or could result in the loss of an otherwise viable case.
In the fall of 2007, 14 compatriots and I signed up for a photography workshop to be conducted under the tutelage of a well known National Geographic photographer. The instructor gave of the benefit of his knowledge and skill in developing his unique and talented approach to outdoor and travel photography. As part of the workshop, we traveled to many scenic locations in the Eastern Sierra Mountains of California. Since this workshop and the photo shoots were being held around Bishop, it was practically in my back yard. It was a session I didn’t want to miss. The regimen for these workshops are all similar; out of bed by 3:00 A.M.; gather for coffee at 3:45; drive to the site of the morning shoot; shoot the sunrise and the morning magic hour; lunch and return to the lecture hall for an afternoon instructional and critique session; drive to the afternoon/evening shoot; shoot until you can’t see anymore; dinner (if you are lucky); process and review the day’s shots; hit the sack by 11:30 so you can start again the next day before dawn.
The workshop sponsors had their hands full; coordinating transportation for 20 or so people and 1-1/2 tons of camera gear, supplying 80-90 meals, processing film, assisting in instruction, planning the photo shoots to take advantage of all of natural beauty in the area. We are talking about iconic scenic areas such as the famous Bishop Creek and lakes, Bristle Cone National Monument, and the fantasy land of Mono Lake and its tufa. This was a “can’t miss” opportunity, right? Well, not entirely. The first day’s sunrise found us in the brush and along the banks of North Lake at 9000+ feet basking in the 31 degree predawn watching ice crystals form along the south shore. The cloudless day resulted in little drama in the sunrise, but we were all excited to be there. Since there was to be a full moon that evening,Bristle Cone National Monument, at 10,100 feet elevation across the valley in the White Mountains was scheduled as our night shoot. Imagine the moon rising behind 2000 year old gnarly, twisted trees. The hike from the visitor’s parking lot to the nearest good specimen Bristle Cone was only about 1/2 mile; the elevation change was about 500 feet, a mere bump at sea level but packing 20 pounds of gear at this altitude made it feel like Mt. Everest. We were hurrying to catch the last light of the day and breathlessly set up for the moon rise. Unfortunately, no one considered the fact that we were on the west face of the 13,000 foot White Mountains and the moon would be rising on the other side. I got great shots of the Bristle Cone trees anyway.
Two more days of pre-dawn gatherings, arduous hikes and disappointing conditions left most of us tired and a little grumpy. On the last full day things started to look up; a storm had been brewing in the mountains but the cloud cover was breaking up. It portended to be a great sunset. The late afternoon shoot that day was along the South Fork of Bishop Creek to catch the beautiful colors and movements of the aspens. By 30 minutes before sunset, the sky overhead had cleared with just a few clouds clustered over South Lake to the West. We were in a deep north-south canyon. I insisted that the best view of sunset would be about 8 miles back down the mountain. I lost the argument. The group stayed in the canyon to shoot the sunset but I slipped away and headed back down Highway 168 toward Bishop looking over my shoulder every few hundred feet to find the right spot. Just as the sun was setting I pulled off onto an old mining road and set up the tripod. I shot nearly 2 gigs of photos (about 90) of the sunset. The one above is toward the end of sunset and at the beginning of civil twilight. The next morning, we all compared our sunset photographs. Of course, I was the only one that had any dramatic photos.(If this were not the case, I probably would not be telling this story.)
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This time, I got a good shot because I didn’t follow the consensus opinion. To be fair, I should add that my Bishop home is only a few miles away and I’ve shot the sunset from this location several times before. My fellow workshop attendees missed some spectacular shots because they didn’t really think about the situation. It is hard to get a good photograph of a sunset when you are in a deep valley with 13-14000 foot mountains between you and the horizon. In litigation, we often miss the shot because we listen to conventional wisdom and do not think the case through in the beginning. Gather all the available facts, think the problem through in your head, then using this analysis, go with your gut
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Sometimes it's what's Hidden that Counts
Moon Rise in the Alabama Hills
There are times when the obvious is misleading. There are many cases that appear to be routine accidents with little or no attributable negligence or a good liability case that is weak on damages. At first impression, the case may not be worth pursuing because of the low expectations of return. It is only after careful consideration of totality of circumstance that it becomes apparent that there is not only a viable case but one where the compensatory damages are significant.
The photograph (left) is one that I shot a couple of years ago while hiking in the Alabama Hills with my dog Teddy. This shot has special meaning for me since Teddy was diagnosed with gastric cancer a few weeks after this hike; it was the last one we had together. I was looking for a natural arch through which I could frame Mt. Whitney; Teddy was looking for a place to pee and any kind of varmints hiding in the bushes. We stopped to rest in shade of a wind cave in one of the rocks and on leaving, I noticed the moon rising on the eastern horizon. I took my camera from the backpack to get a shot of the moon over the Inyo Mountains, but Teddy pulled on his lead toward the east, spoiling the shot. After about 60 feet, he stopped; I was muttering bad words because of the missed shot when I looked up to see the moon framed by the rocks. Because photographing the moon can be tricky, I bracketed the shots. The best of the bunch was this one.
This is not what it seems. The small triangular peak on the left is the tip of a 120 foot rock. The smaller ball on the right is larger than my Jeep. They are separated by several hundred yards. Things are sometimes different than what they appear. I got this view by looking at the rocks from a different perspective; I was laying on my stomach (with a very bewildered dog standing over me) shooting through a 28-200 mm lens cranked up to about 105 mm. I didn’t have time for neutral density filters so I blew out the highlights on the moon. I combined two bracketed shots in Photoshop to recover the details.
Premises liability cases are often different than what they seem. A few years ago, the California Court of Appeal heard a case that was a good one based on negligent inspection and maintenance of a fruit stand by the operator of the business. The plaintiff was a patron of the stand, walking between crude tables to inspect and purchase locally grown fruit. The stand was built on a smooth finished concrete slab. Plaintiff slipped on crushed fruit on the floor and filed suit for negligence against the owner of the stand and the operator of the business. Twenty years before, the operator had leased the building from the property owners for a period of five years. After the term of the lease expired, he continued on, staying in possession on the same general terms with only minor adjustments in the rent from time to time. There was no question that the crushed fruit on the floor was slippery and that the operator of the fruit stand did not exercise reasonable care in inspecting and cleaning the floor.
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The non-possesssory landowner moved for summary judgment based on a lack of notice of the defect and a lack of actual possession; defendant claimed that they had not been in possession for 20 years. Trial court granted the motion; plaintiff appealed. The appellate court held that the defendant property owner was not entitled to summary judgment and established a rule of law that requires a lessor who leases property for the purpose of admission of the public to see that it is safe for the purpose intended and to exercise reasoanble care to inspect and repair before possession is transferred so as to prevent any unreasonable risk of harm to the public. The court also held that on the anniversary date of the expiration of the lease, the property owner had de facto possession and since they had retained the right of entry should have inspected the premises for foreseeable use hazards. For a more detailed discussion of this case and its progeny see sections 212.1, 233.1 and 241 of Slip and Fall Practice (2008). Manuel Miller,
plaintiff’s attorney, not only looked at this case from a different angle, but convinced the Court to do so as well. (Lopez v. Superior Ct, 45 Cal. App. 4th 705)
Outdoor Photography
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This is a section of Bishop Creek in the Eastern Sierras near South Lake. Of the thousands of scenic shots I’ve taken over the past few years, this is one of my favorites. I hope you enjoy it.
2009 Supplement to Slip and Fall Practice
Ancora Imparo
These words were never more true! Spoken by Michelangelo when he was in his 80’s and still painting. He was asked “why are you still doing this?” His reply: “ancora imparo.” Yet I learn or I am still learning. I am working on the manuscript of the 2009 Supplement to Slip and Fall Practice. free riders movie download Each year I find changes in the statutes and case law regarding premises liability which is likely to have an impact on both the safety professional and the legal practitioner. A few years ago I revised the chapter on human factors; now it is time to make some major additions to the discussion of human locomotion. This whole area of study is rapidly expanding. I discovered over 300 peer reviewed papers on the subject of ground reaction forces (the forces generated between the foot and the walking surface during movement). In the past couple of months I have had cases where these forces have been substantial factors in evaluating the liability in cases involving walking on wet grass, uneven railroad ballast, cross slopes or ramps, stairways, tennis courts, parking lots, super market floors and others. I don’t anticipating reading all 300+ papers, but I will read at lest half of them. That”s approximately 1800 pages to be able to write a dozen or so new paragraphs in the book. There will likely be a couple of hundred more to read so I can comment further on the epidemiology of cumulative stress disease in knees, hips and ankles.
This year’s supplement will be published by James Publishing, Inc., in May or early June. I plan to include new law practice sections addressing evidence and discovery issues, ADA and other accessibility standards and guideline changes, the effect of changes to the International Building Code; and updates on lot of technical and legal stuff. Slip and Fall Practice was first published on 1988, so this is the 21 supplement. Each year presents a challenge to provide new and informative material for our readers. I have been able to meet that challenge only by the continued contribution and advice from my readers. Thank you!