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.
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)
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