Unusual Claims Can Be Made

You just never know what’s going to end up in court.  The following summary is from a reported decision from a genuine case filed in court.

Three men went to the zoo in the early morning hours.  They apparently weren’t satisfied with looking at the animals from ground level, so they climbed up into a very large and tall oak tree.  They started making a lot of noise, and their  “loud voices up in the tree were upsetting some of the animals in the zoo.”  The case opinion doesn’t say whether it was the giraffes, the elephants, the lemurs or some other kinds of animal that were getting upset.  Regardless, the zoo’s general curator, a groundskeeper and a park security policeman responded to the disturbance.  The policeman ordered the three friends to come down out of the tree.  However, the policeman didn’t tell them to be careful when they were coming down.

One of the friends fell out of the tree from a height between 25 and 45 feet.  That’s a significant fall – it’s the equivalent of falling from the top of a two to four story building. There wasn’t much to cushion his fall at the bottom – he fell on the tree roots and was seriously hurt.

The injured tree-climber filed suit against the park on three general grounds.  The first was that although the park had a rule against tree-climbing, the rule wasn’t posted.  The court asked a rhetorical question: “Should the Park post the rule prominently upon each tree?  Would the public stand for a park defaced by signs on every tree to warn of a danger of which everyone is already aware? The mere existence of the rule did not create a duty . . . to post it.”

The climber claimed that the park employees knew he had been drinking and that because of this knowledge the employees owed him a greater duty of care.  But the court rejected this claim, and found that “It is neither axiomatic nor knowledge common to all that men when drinking are utterly reckless of their safety or insensible to their duty to protect themselves.”

The climber also claimed that the policeman was under a duty to tell him to be careful climbing down.  The court responded: “We hardly see how a warning that ‘if you fall you might get hurt,’ which is so obvious and universally known, would have supplied plaintiff with any useful information he did not already possess. Above a certain age one should not have to be told not to leap out of windows etc., and there is no duty owed to inform plaintiff of what he already knew.”  The plaintiff claimed that the park employees breached their duty of care by ordering the men out of the tree.  But the court found that “A soft, gentle request to climb down addressed to three noisy men twenty-five to forth-five feet up in a tree undoubtedly would have gone unheard and unheeded.”

The court stated that it “would be doing violence to the environment and to society if we were to hold that the mere ownership of a tree created per se a hazardous condition or unreasonable risk such as would give rise to strict liability.  The benefits of trees to society far outweigh any attendant risks and any decision that would discourage the ownership of trees would be contrary to the public good.”

Though this was not a California case, it’s conceivable that a California court might reach a similar result.  The full case can be found at Henshaw v. Audubon Park Commission, 605 So.2d 640 (1992).

Copyright 2017 ROBERT B. JACOBS