Booze And Boating Don’t Mix (But They Do Lead To An Interesting Discussion Of Negligent Entrustment)

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Boat and beer (pd)Some sets of facts just seem tailor-made for a potential lawsuit. Climbing up a ladder with a chainsaw to cut your neighbor’s tree limbs that are hanging over your lawn comes to mind.  Also on that list, a day out on a boat with your friends from the local bar, more than a few beers, and a jet-ski. Those were the basic facts in Votor-Jones v. Kelly. In that case, what started out as a fun day out at sea for a group of friends became a very bad day for plaintiff and an opportunity for the court to opine on the rarely-invoked tort of negligent entrustment.

In Kelly, plaintiff was “one of seven employees and patrons of Kelly’s Tavern invited on a social trip organized by the tavern’s owner and plaintiff’s boyfriend.” While plaintiff described the event as a “bar outing,” it was not the more formal, “large scale ” “customer appreciation days” that the bar had organized in the past. Instead, it was “small and planned the night prior at the suggestion of the boat’s operator.” Each attendee was required to bring their own food and alcohol. To that end, plaintiff and her boyfriend testified that, on the morning of the cruise, they went to the bar and fulled their cooler with approximately 24 beers and a bottle of wine. The group had a total of four or five coolers like this on the boat.

The attendees had a “tacit agreement” that they would not drink until 4pm, but some apparently ignored this agreement. One defendant acknowledged that she was drinking prior to boarding the boat and plaintiff testified that she saw this woman have “at least three beers on the dock” before the cruise began. Once the cruise started, this same woman was seen with a beer in her hand and was described by plaintiff as being “loud,” “boisterous,” and “excited.” Plaintiff conceded that she did not know if the woman was drunk, but did see her “wobbling on the boat, as was everyone else.”

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Law And The Simpsons, Lesson One: Trampolines=Potential Lawsuits

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

I know trampolines are fun, but everyone should know, thanks to The Simpsons, that they are a recipe for (legal) disaster:

Apparently some people missed this episode, as a recent decision from the Appellate Division, Panico v. Winner, demonstrates. [Note: In the second week of my first-year torts class, our professor told us that we were having a pop quiz. Being first-year law students, we all panicked. But then he shut off the lights and played this clip and we discussed all of the potential legal issues. It was a relief that it was not a quiz, but unfortunately this was the high point of my first-year torts class.]

In Panico, plaintiff was injured while jumping on a trampoline at a graduation party. The party was held at one of his classmate's homes and was attended by approximately twenty teenage guests. His classmate's mother originally planned to attend the party and serve as chaperone, but later learned that she would not be able to attend because of a work obligation. She told her daughter that she would have to cancel the party unless her daughter could convince the daughter's grandparents to attend. The daughter was able to do so. Her grandparents attended the party and, as a reward, became defendants in a lawsuit. 

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Let Sleeping Dogs Lie . . . Just Not In A Hallway Where They Might Create A Dangerous Condition?

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Sleeping dog (pd)When is a sleeping dog a dangerous condition? This is the burning question that the Appellate Division answered in Parella v. Compeau.

In Parella, plaintiff attended Christmas dinner at a friend's house along with approximately 20 other guests. After the second course, she got up from her chair to put her dish in the kitchen sink and check on her child who was in an another room. To do so, she had to walk behind several seated guests. She did not have to ask anyone to move until she got to the last guest in the row. That guest moved her chair in and plaintiff made a move familiar to anyone who has been to a crowded holiday dinner — she "lifted [her] glass and plate, turned her back to the wall and shuffled her feet to pass behind [the] chair." "As she cleared the chair, plaintiff turned right to enter the hall toward the kitchen, and fell." 

What caused her fall was a "tan, fairly large dog" that was "lying in the hallway, past the threshold of the dining room." The dog did not belong to defendants, the owners of the house and the hosts of the party, and was one of two dogs in the house for the party. When plaintiff fell, the wine glass she was holding broke, cutting her finger and severing a tendon. Plaintiff sued, alleging that defendants failed to warn of her of a dangerous condition — the dog — in their home. The trial court granted summary judgment to defendants and plaintiff appealed.

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“Does Your Dog Bite?” What, If Any, Duty Does A Dog Owner Owe To A Trespasser?

 by:  Peter J. Gallagher (@pjsgallagher)

I loved the Pink Panther movies, and one of the more memorable scenes in the series involved Inspector Clouseau trying to pet an innkeeper's dog (or, more accurately, a dog that he thought belonged to the innkeeper:

 

 

Other than the fact that both involve a dog bite, this clip does not have much to do with the recent Appellate Division opinion in Ahrens v. Rogowski, but it is a funny clip and worth sharing.

In Ahrens, the Appellate Division was presented with the less humorous case of a woman who was bitten by a dog when "trespassing" on the dog owner's property. I put "trespassing" in quotes because, when I think of trespassing, I think of someone sneaking onto property late at night with nefarious motives, and that is not what happened in Ahrens. Nonetheless, plaintiff was trespassing in the legal sense when she was bitten by the property owner's dog and the Appellate Division was faced with what duty, if any, the owner owed her as a result.

 

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