Beachfront Property Complex

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It’s been a busy end of the year – which means we haven’t seen as many Christmas DVDs this year as we might normally watch.  But some weeks ago, we did watch “Miracle on 34th Street.”  This is a charming movie from 1994 (which is actually a remake of a movie from 1947).  The movie concerns the reality of Santa Claus.  Richard Attenborough does a masterful job of portraying Kris Kringle in this heartwarming film about whether or not Santa Claus is real.  The climax of the movie occurs in a New York courtroom, where trial judge is called upon to determine whether or not Santa Claus actually does exist.  Following some fancy legal maneuvering, the trial judge makes a final decision, and there’s a happy ending all around.

It’s not every day that a lawyer gets to represent Santa Claus in court.  Dylan McDermott, who represents Kris Kringle in the film, does a great job of portraying the legal eagle who advocates Santa’s cause.  But what are the chances that most lawyers, or even any lawyer, would ever get a chance to represent the “Jolly Old Elf?”

The likelihood that any California lawyer might get a chance to represent Father Christmas in a legal matter may depend, at least in part, on how California Law views Santa Claus.  There are online legal databases that allow for word searches of all California cases.  So – if you were to do a word search of California legal cases, you’d find that the phrase “Santa Claus” actually does appear in a number of California cases. In one case, a police officer dressed up as Santa Claus and led a procession of motorcycles in a “pursuit for Kids Toy Ride.”  Amezcua v. Los Angels Harley Davidson (2011) 200 Cal. App. 4th 217.  In another case, a witness offered testimony at trial which the Court compared the testimony to a belief in Santa Claus.  People v. Moret (2009) 180 Cal. App. 4th 839.  And there’s even a case involving beachfront real estate – which is briefly described as follows.

The development of California’s coastal lands are regulated by law.  California beaches, or “tidelands,” are generally publicly owned.  This means that most tidelands and beaches are owned by the people of the State of California and not by private owners or investors.  However, there is a “line” where the beach “stops” and where private ownership of land begins.  This “line” is known as the “Mean High Tide Line.”  Land which is closer to the sea is “seaward” of the line and is owned by the public.  Land which is further from the sea is “landward” of the line, and such property can be owned by private individuals.  It’s very interesting to note that this property “line” does not stay a fixed location.  It changes over time with the level of the sea and the erosion or build-up of the shore.  It’s one of the very few property lines that can be constantly changing over time.

The California State Lands Commission is charged with the oversight of these beachfront lands.  The Commission adopted a policy which said that building, or development, is prohibited if it is any closer to the sea than position where the “Mean High Tide Line” has ever been.  In other words, if a parcel of land is presently located on the “landward” side of the line, but in the past it was located on the “seaward” side of the line, then the policy would prevent such landowner from ever building on such land.

In the case of Bollay v. California Office of Administrative Law (2011) 193 Cal. App. 4th 103, a landowner challenged the policy of the Commission.  Initially, the trial court held that the commission’s policy was valid and effective. But the Court of Appeal found that among other things, the policy would prohibit the development of land that is not now owned by the State of California and which may never in the future be owned by the State of California.  As a result, the Court of Appeal reversed the trial court and found that the Commission’s policy was invalid.

Notwithstanding this holding, the development of beachfront property involves complex legal considerations, and persons considering building, developing, or remodeling beachfront properties should consult appropriate legal counsel.

So how does such a case involve Santa Claus?  The beachfront property at issue was located on Santa Claus lane in Carpinteria.

Church Properties Subject to Law

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Most kids in High School take a class in Civics or U.S. History.  And most of those kids will learn about the United States Constitution.  They’ll learn that the Constitution was amended by the Bill of Rights, and they’ll learn that the Bill of Rights is the name of the first 10 amendments to the Constitution.  They’ll also learn that one of those amendments provides that Congress may not pass any law concerning the establishment of a religion.  This is formally known as the “establishment” clause.  It’s more commonly known as “separation between Church and state.”  Less know, but equally true, is the fact that the California Constitution also prohibits the California State Government from making any “establishment” of religion.  This is found in the California Constitution at Article I, section 4.

This separation is so firmly embedded in our perspective that the thought of having a church that is favored by the government is completely foreign to us.  But not every country takes this approach.  For example, some countries have supported a state-favored church with tax money.  This can obviously provide such churches with an enormous benefit with respect to operational costs.

In the United States, the separation between church and state is almost taken for granted.  Most people in this country never even think about how the establishment clause might affect their daily lives.  Yet the establishment clause can have a real effect on peoples lives right now.

Here’s an example.  Suppose a local congregation owns a church building on land that is also owned by the congregation.  But suppose the congregation encounters a disagreement over a point of church beliefs.  If this disagreement becomes severe enough, then it’s possible that the congregation may split.  Each side could claim it holds the correct beliefs.  If the dispute becomes sufficiently severe, there could literally be a separation of the congregation.  If this were to happen, each side might claim that it is entitled to the church-owned land and building.

What happens if the dispute becomes severe enough that the dispute ends up in Court?  The result can be surprising.  In such a situation, a court would literally be called on to make a decision as to which group is entitled to ownership rights as to church property.  However, the courts are governmental entities.  Even though a court isn’t a legislative body, it is still one of the branches of government and courts can actually create law where none existed before.  As a result, courts are subject to the establishment clause.  This means that the courts can’t take sides, nor can they favor one religion over another.  Where a “heierchal” church structure exists, then in appropriate circumstances a court may look to the decision of the church heierchary for determination as to which group represents the “true” church.  And once the “true” group is determined, then a court may award the church property to the “true” group.  In other cases, ownership of the church building and property may be determined by the bylaws of the church, the deeds to the property, and other key documents relating to church governance.   These principles are generally discussed in Metropolitan Phillip v. Steiger (2000) 82 Cal. App. 4th 923.

What can be done in advance?  Local congregations that own real property may be able to avoid later problems by deciding in advance how they are going to hold title to their church property, the nature of their relationship with a larger church organization, and how they plan to handle any potential disputes concerning ownership and handling of church property.

Short Sale Can Result in Surprise

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California has a “Security First” rule.  This rule requires a lender to foreclose on a property before looking to a buyer’s other assets if a Buyer defaults on a loan.

The “Security First” rule can help borrowers who aren’t able to make the payments on their home.  But homeowners need to be cautious when getting involved in short sales, deeds in lieu of foreclosure, or other negotiations with their lender concerning loan modification or defaults. An uninformed borrower can actually damage their position if they get involved in a short sale without taking the necessary steps to protect themselves.

Here’s how it works.  Many borrowers today have two loans on their home.  If their home is “underwater” then such borrowers may elect to sell their home for less than the amount of the loans against their properties.  If the lenders agree to this, then such borrowers can use a “short sale” to get out of their underwater property.

But these days some lenders on a second loan are only agreeing to “release their lien” in a short sale.  This is very different from having such lenders release all claims against the buyer under the loan.  If the lender only releases its lien, then the lender may be only agreeing to release its mortgage lien so the homeowner can sell their property in a short sale.  Unless the lender releases all claims against the buyer under the loan, the lender could be planning to make a claim against the borrower for the unpaid loan balance following the short sale.

This could be a very unpleasant surprise for an unsuspecting homeowner following a short sale.  Such a homeowner might finish a short sale thinking that they are fully done with the property, only to find out later that their lender is making a claim against them.

Care must be used to avoid such situations.  Homeowners who want to avoid such surprises should get competent, qualified professional assistance in connection with their contemplated short sale or deed in lieu of foreclosure.

Storing Your Property Without Government Interest

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Ever feel like the garage is just too full?  Since most California homes don’t have basements, a garage or an outdoor storage shed often becomes a homeowner’s storage facility.

But when the garage gets too full, it just might be time to look into a self-storage unit.

And apartment dwellers find that a self-storage unit might be just the thing if they’ve downsized their living space.

As with many other aspects of California living, California has a law that governs (in part) the use of self-storage facilities.  This law is known as the California Self-Service Storage Facility Act and is found at the California Business and Professions Code section 21700.  This Act doesn’t govern all aspects of self-storage unit rentals.  Instead, a key focus of the act is to provide for liens to ensure that renters pay their storage fees.  If they don’t, then the owner of the storage facility is entitled to place a “lien” on the personal property being stored at the facility.  The facility owner can even “lock out” a renter, and if the fees aren’t paid, then the stored property can be sold at public sale and the sales proceeds can be used to pay the overdue storage fees.

So what happens if a renter gets behind on their monthly storage fees and the facility owner locks the renter out?  Can the facility owner require that the renter pay the back fees before the renter can retrieve their belongings?  The answer is “yes.”  What’s more, the facility owner can continue charging monthly rental fees and late fees as provided by the lease while the renter is locked out, and if the renter doesn’t pay these additional fees, then the facility owner can continue to lock out the renter.

This principle has been considered by a California Court of Appeal. In this case, the renter got behind on her monthly payments, and the facility owner sent her a notice stating that she owed $124.75 in back rent plus $45 in late fees (at $15 per month).  The notice further stated that if the past due amounts weren’t promptly paid, then the renter’s right to use the space would end, the renter would lose access rights to the space, and the owner would impose a lien on the renter’s property. The notice further stated that the amount due would continue to increase as provided by the lease agreement until paid in full.

The renter eventually paid the facility owner $500, which was more than the amount demanded.  But by the time this $500 was paid, additional charges had accrued.  As a result, the renter still was still behind even after paying the $500.  Ultimately, the owner claimed that the fees due were $1,282.00.  Instead of paying the fees, the renter filed a lawsuit.

At trial, the renter lost and the renter filed an appeal.  On appeal, the Court of Appeal found that nothing in the California Self-Service Storage Facility Act prevented monthly rental fees and late charges from accruing even while the renter was denied access to her space.  As a result, the renter also lost on appeal.  This case is reported as Vitug v. Alameda Point Storage, Inc. (2010) 187 Cal. App. 4th 407.

Store-bought contracts can be slippery

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Sometimes people get in a legal dispute who say they used a “standard contract” from a book they bought.  Because they used a form contract from a published book, they expect the contract to be authoritative and adequate.  If the contract turns out to be inadequate, these people are sometimes surprised – and always disappointed – that the form contract they used has not served them well.

I have seen contracts for leases – or sales – of real property from published books that were ambiguous.  When people want to enforce such a contract, they might have a problem, because at trial they will be asking the judge to compel the other side to perform according to the contract.  If the contract isn’t clear, then nobody’s sure what the other side should do, or what they agreed to.  It may then be possible for the other side to break the contract altogether.

It is impossible to evaluate whether all of the contracts from printed sources are adequate.  Each contract must be separately evaluated to tell whether it is adequate.

Some prepared sources claim to follow California law.  But others may not.  The problem is that the California state Legislature regularly passes new laws. If a prepared contract does not follow California law, then it is possible that portions of the contract might be void or unenforceable.  If a prepared contract does follow California law, then it is important to know whether the contract has incorporated legal updates.

The moral to the story?  Enter a contract with care.  And have a good attorney review it.

Movie Stunts on Public Streets

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            Several past articles have discussed the use and importance of streets and highways in accessing real estate.  It’s clear that most of the time streets and roads are used for the purpose of actually going somewhere to a destination point, or for the purpose of getting to a point on the map.

However, occasionally streets and roads are used for other purposes.  Sometimes these “other uses” can end up in court.

Several years ago, a California case addressed one of these alternate uses for streets.  This case involved a movie stunt that didn’t turn out as expected.  In that case, the streets weren’t used to actually go somewhere.  Instead, they were used for filming.  The case went to trial, and then to an appeal.  In its opinion, the court of appeal wrote the following.

“Motion pictures remain one of the premier forms of entertainment in today’s world.  Movies frequently entertain through flights of fantastic adventure, heavily laden with excitement and danger.  Motion picture producers and directors are often able to achieve such results by employing tricks of the trade (e.g., animation, trick photography, special effects, and clever splicing and editing). Some producers and directors, on the other hand, resort to photographing adventuresome activities which are nearly as dangerous as they appear on screen and which sometimes imperil those in front of and behind the camera.”

“The motion picture industry has long employed seemingly fearless and hardy stuntpersons to perform activities too hazardous for professional actors to undertake.  Frequently, these stuntpersons achieve spectacular results without injury.  Other times, as here, adventure becomes misadventure.”

It seems that a stuntwoman, who was also a ski instructor and aspiring actress, was hired to do stunt work in the filming of “Cannonball Run.” This stuntwoman was to be a passenger in a 1962 Aston-Martin sports car, which itself was a double for another Aston-Martin sports car used elsewhere in the film. Filming began in Los Angeles, then moved to Florida and Georgia, and then to Las Vegas.  The Aston-Martin that was used in the film was a vintage car, and had no seat belts.  (The other Aston-Martin car, for which the stunt car was a double, is referred to in the Court’s opinion as the “original James Bond car” which was used in filming “James Bond” movies, and was equipped with special features such as machine guns – along with seat belts).

When the stunt car was delivered to the set, it was found to have defective steering, bald tires, and a malfunctioning clutch.  It wouldn’t go more than eight miles an hour.  It was repaired – but no seat belts were installed.

In the stunt, the Aston-Martin was driven by a stunt car driver southbound on a highway where it encountered five northbound vehicles also being driven by stunt drivers.  There were two takes made of the stunt.  In the first take, the Aston-Martin cut across the front of opposing traffic and onto the opposite shoulder, passed the oncoming cars, and then returned to the highway.  The camera operators used their lenses to make it look like the vehicles were passing closer together than they actually were.  This stunt went smoothly, and the stuntwoman thought the car performed perfectly.

After the first take, the director told the stunt drivers to pick up the pace and drive faster.  The director wanted the Aston-Martin to weave in and out of the oncoming cars in serpentine fashion.  Nobody told the passenger stuntwoman that the second “take” was to be different than the first.  Unfortunately, during the second take the Aston-Martin collided with a Ford van, and both the driver and the stuntwoman were hospitalized, with the stuntwoman suffering catastrophic injuries.

The stuntwoman sued for her injuries because there were no seat belts in the car, and at trial her expert testified that if she had worn a lap-shoulder seatbelt, she would at most have suffered fractured ribs.  The evidence showed that seat belts were available on the movie set and could have been installed in 20 minutes.

At trial, the jury awarded the stuntwoman damages of seven million dollars, but found her partially at fault in the amount of 35%.  The trial judge therefore reduced her award by 35%, and due to settlements previously received from other parties which served as an offset, the trial judge entered an award in favor of the stuntwoman of $0.00.  The Court of Appeal affirmed this judgment. The case is reported as Von Beltz v. Stuntman, Inc. (1989) 207 Cal. App. 3d 1467.

Issues of negligence, liability, offsets, and personal injuries involve complex issues of fact and law.  Persons considering such questions or issues should seek the advice of competent legal counsel.

Movie Stunts On Public Streets

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          Several past articles have discussed the use and importance of streets and highways in accessing real estate.  It’s clear that most of the time streets and roads are used for the purpose of actually going somewhere to a destination point, or for the purpose of getting to a point on the map.

However, occasionally streets and roads are used for other purposes.  Sometimes these “other uses” can end up in court.

Several years ago, a California case addressed one of these alternate uses for streets.  This case involved a movie stunt that didn’t turn out as expected.  In that case, the streets weren’t used to actually go somewhere.  Instead, they were used for filming.  The case went to trial, and then to an appeal.  In its opinion, the court of appeal wrote the following.

“Motion pictures remain one of the premier forms of entertainment in today’s world.  Movies frequently entertain through flights of fantastic adventure, heavily laden with excitement and danger.  Motion picture producers and directors are often able to achieve such results by employing tricks of the trade (e.g., animation, trick photography, special effects, and clever splicing and editing). Some producers and directors, on the other hand, resort to photographing adventuresome activities which are nearly as dangerous as they appear on screen and which sometimes imperil those in front of and behind the camera.”

“The motion picture industry has long employed seemingly fearless and hardy stuntpersons to perform activities too hazardous for professional actors to undertake.  Frequently, these stuntpersons achieve spectacular results without injury.  Other times, as here, adventure becomes misadventure.”

It seems that a stuntwoman, who was also a ski instructor and aspiring actress, was hired to do stunt work in the filming of “Cannonball Run.” This stuntwoman was to be a passenger in a 1962 Aston-Martin sports car, which itself was a double for another Aston-Martin sports car used elsewhere in the film. Filming began in Los Angeles, then moved to Florida and Georgia, and then to Las Vegas.  The Aston-Martin that was used in the film was a vintage car, and had no seat belts.  (The other Aston-Martin car, for which the stunt car was a double, is referred to in the Court’s opinion as the “original James Bond car” which was used in filming “James Bond” movies, and was equipped with special features such as machine guns – along with seat belts).

When the stunt car was delivered to the set, it was found to have defective steering, bald tires, and a malfunctioning clutch.  It wouldn’t go more than eight miles an hour.  It was repaired – but no seat belts were installed.

In the stunt, the Aston-Martin was driven by a stunt car driver southbound on a highway where it encountered five northbound vehicles also being driven by stunt drivers.  There were two takes made of the stunt.  In the first take, the Aston-Martin cut across the front of opposing traffic and onto the opposite shoulder, passed the oncoming cars, and then returned to the highway.  The camera operators used their lenses to make it look like the vehicles were passing closer together than they actually were.  This stunt went smoothly, and the stuntwoman thought the car performed perfectly.

After the first take, the director told the stunt drivers to pick up the pace and drive faster.  The director wanted the Aston-Martin to weave in and out of the oncoming cars in serpentine fashion.  Nobody told the passenger stuntwoman that the second “take” was to be different than the first.  Unfortunately, during the second take the Aston-Martin collided with a Ford van, and both the driver and the stuntwoman were hospitalized, with the stuntwoman suffering catastrophic injuries.

The stuntwoman sued for her injuries because there were no seat belts in the car, and at trial her expert testified that if she had worn a lap-shoulder seatbelt, she would at most have suffered fractured ribs.  The evidence showed that seat belts were available on the movie set and could have been installed in 20 minutes.

At trial, the jury awarded the stuntwoman damages of seven million dollars, but found her partially at fault in the amount of 35%.  The trial judge therefore reduced her award by 35%, and due to settlements previously received from other parties which served as an offset, the trial judge entered an award in favor of the stuntwoman of $0.00.  The Court of Appeal affirmed this judgment. The case is reported as Von Beltz v. Stuntman, Inc. (1989) 207 Cal. App. 3d 1467.

Issues of negligence, liability, offsets, and personal injuries involve complex issues of fact and law.  Persons considering such questions or issues should seek the advice of competent legal counsel.

Buried Treasure?

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          “A treasure is a thing hidden or buried in the earth, . . . which no one can prove his property, and which is discovered by chance.”

This definition of “Treasure” is quoted from the laws of the State of Louisiana. The definition has its origins in the Napoleonic code upon which Louisiana law is based. Louisiana law also provides that “The ownership of a treasure belongs to the person who finds it.”

I remember as a young boy running across the book Treasure Island by Robert Louis Stevenson.  This book describes pirates, mutinies, sailing ships, ocean journeys and buried treasure.  Thoughts of buried treasure usually call up movies like Pirates of the Caribbean.  But treasure really sometimes does exist, and sometimes in the most unlikely places.

Lucian Sebastian Baron was a wealthy resident of Lousiana who died in 1928.  At the time of his death, he was being taken care of by his daughter Emily.  After her father’s death, Emily moved in with her brother at a home near New Orleans, and she bought a mattress.  When the family moved, Emily took the mattress with her.

Emily eventually built a separate home for herself next to her brother’s home.  She had customary locks on the doors on her home, and a special lock on the door of her bedroom.

Emily seldom left her home. She allowed nobody to enter her bedroom unless she was present.  She ordered her clothes by catalog.  By the time of her death at age 82 in 1957, she was completely blind. At the time of her death, she left no will.

Emily’s mattress remained locked up in her room for a year after she died.

Emily’s heirs inherited all of her property.  They sold her mattress for $2.50.  The mattress was taken to a mattress works where it was dismantled. The interior cotton was processed through a chopping machine.  The cotton was then placed into another box where air was blasted through it.  When all of the air stopped blowing, there was $22,500 in gold certificates that had been stored in the mattress.  That’s a fair amount of money in 1957.

Emily’s heirs claimed that the gold certificates were “lost property” and that as Emily’s heirs they were entitled to keep the certificates.  The mattress buyers, however, claimed that they had paid good money for the mattress and everything in it, so the certificates belonged to them.  The mattress buyers also claimed that the gold certificates were “in fact a treasure trove, and that, since the treasure was found in their property, it belonged to them.”  This case is reported at United States v. Peter (1959) 178 F. Supp. 854.

You be the judge.  Who wins?  The heirs of the wealthy 82-year-old woman who lives alone and stuffs her mattress with money?  Or the fortunate purchasers of the mattress who find a treasure trove in their mattress?

After discussing both English Law and the Napoleonic Code on the subject of treasure, the Court made short work of the arguments by the mattress purchasers. The court awarded the money to Emily’s heirs.  If the true owners of the money couldn’t be found, then the mattress purchasers would have made a good claim to the money.  But since the money clearly belonged to Emily, her heirs were entitled to it.

So much for buried treasure.  Any modern-day Long John Silvers should remember that if they find a treasure chest, the owner has the right to the treasure.  And if the true owner files a lawsuit for return of the treasure, then the successful treasure hunter will probably just be out of luck.

Top Ten Ways to Get Rid of Property

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There’s no doubt about it.  Sometimes it’s just necessary for a homeowner to let their property go.  There are generally 10 ways to get rid of a property.

1)  Conventional sale.  This is a sale where the homeowner has equity in the property.  In this situation, the sales price is higher than the amount of the loans secured against the property.  The lenders are paid off in full and the owner keeps all of the sales proceeds in excess of the amounts needed to pay off the lenders and the closing costs.

2)  Short sale.  This is a sale for less than the amounts due on the loans secured by the property.  The lenders must agree to this kind of a sale because the lenders usually won’t be paid off in full.

3)  Foreclosure.  Foreclosure occurs when a borrower defaults on a loan and the lender causes the property to be sold and the sales proceeds are applied to the loan.

4)  Deed in Lieu of Foreclosure.  This is used when the buyer signs a Deed in favor of the lender.  The use of the device avoids the necessity of a foreclosure sale.  The lender must agree to this in order for it to work.  This is done in part to the fact that a deed is only effective if it is accepted.  If the lender refuses to accept a deed, then this approach most likely won’t work.

5)  Tax sale.  If a homeowner doesn’t pay their county property taxes, then the county will eventually hold a tax sale where the property is sold to pay the unpaid taxes.

6)  Gift.  It’s usually possible to give a property away by signing an appropriate deed.

7)  Creditor sale.  A creditor with a judgment against a borrower can sometimes cause a property to be sold in order to pay a judgment.

8)  Adverse possession.  If an owner doesn’t use their property for several years, and if a stranger uses the property as though they owned it and if such stranger pays property taxes, then such a stranger may actually acquire ownership of the property.

9)  Bankruptcy.  A homeowner in bankruptcy may be discharged from personal liability for one or more loans that are secured by the property.  In some situations, a borrower who declares bankruptcy may save a significant amount of taxes that may otherwise need to be paid.  Real Property can also be sold or foreclosed on in conjunction with a bankruptcy.

10)  Inheritance.  When a homeowner dies, the title to their property will typically pass to someone else.  Deceased people can’t own property.  But the property previously owned by a deceased person will usually remain subject to the lien of the deeds of trust that encumbered the property prior to death.

A homeowner who needs to get rid of their home will often have several options for doing so.  But the method chosen by such homeowners can have profound tax and legal consequences.  Many complex considerations are involved in connection with the sale or loss of property. Most homeowners aren’t aware of the potentially significant consequences that can attend the sale or transfer of real property.  Making an appropriate decision as to how to dispose of real property requires specialized training, skill and/or knowledge.  Homeowners who are considering disposing of their home should obtain competent, qualified tax and legal advice.

Unexpected Results Can Occur

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There’s a lot of law that goes on “below the radar.”

A lot of law goes on “behind the scenes” where it’s completely invisible to the general public.  It’s just never thought about – and that’s because everything seems to work seamlessly.  The only time most people ever think about such law is where there’s a problem.

Take, for example, the circus.  No, really, the circus.  Last summer  my grandson came to visit – and out by Dublin, along Interstate 580, we saw a big, striped tent.  It had big blue and gold stripes.  I don’t remember seeing much of a sign.  But how much sign do you need?  A big-top striped tent of those proportions usually only means one things – a circus.

So – we did what doting grandparents do. We bought tickets.

It was a great day.  Where else can you see a grown man balance a full-sized shopping cart on his chin?  And where else can you see a couple of people ride full size motorcycles around a caged globe – without hitting each other while doing full vertical and horizontal loops at the same time?  There were skilled trapeze artists, a circus master – the whole nine yards.

But I’ll bet most of the circus-goers didn’t stop to think about all of the legal arrangements involved in that event.  For example, the big-top circus tent didn’t just get setup in the middle of nowhere.  It had to be setup on land that belonged to someone.  So that means the circus had to get some kind of permissions – and probably had to pay some kind of a fee – in order to be able to set up their tent on vacant land next to the freeway.  Such an arrangement has all of the makings of a contract for the use of real property – and we usually call this a lease.  Even though the circus was only there for a short period of time, all of the necessary legal arrangements would most likely have to be made in advance, including leases and other legal arrangements.

Not every circus sets up under the big top.  It seems like a lot of circus performances these days take place indoors – like at big indoor arenas.  Same thing – most of these events may well be backed up by a lot of contracts.  Such contracts might take into account such things as the type of use that is to be made of any particular facility, and the times and dates when it will be available.  And lots of contracts contain terms that address things like potential accidents, incidents, or unforeseen circumstances.  Such contracts can spell out who’s going to assume the risk of certain kinds of accidents or loss.  Among other things, such contracts can provide for who’s going to pay for loss, injury, or damage from an event.

And don’t think it doesn’t happen.  A circus – or any other event – can experience an unforeseen event, where things might not go according to plan.  Here’s an example.

It seems that in 1958, the “Great Danbury State Fair, Inc.” was apparently hosting a fair. (The Wikipedia article on Danbury Fair indicates that this fair started in 1821 and that beginning in 1869 it ran for 10 days every October until 1981, when it closed).  There was apparently an incident of sorts that resulted in a lawsuit.  The reported opinion doesn’t give many details, but it does indicate that someone was injured and that the Great Danbury State Fair, Inc. was one of two named defendants (the other named defendant was “Steele’s Frontier Days”).

The court’s opinion is very short – it is only 6 paragraphs long (and two of those paragraphs are only 1 sentence long).  The court’s opinion refers to an “allegedly offending elephant” and notes that the complaint filed by the injured person describes the elephant as “an animal ferae nature, ” which in Latin means “wild animal.” No other details are given in the court’s opinion.

Reading between the lines, it seems clear that someone was injured at the Great Danbury State Fair, and that this person claimed that an elephant was the cause of the injury, and that they believed that Steele’s Frontier Days and the Great Danbury State Fair were responsible.  The case is reported as Becker v. Steele (1958) 139 A.2d 820.

(The court’s opinion is very brief – it doesn’t say what the accident was, or how it happened, or whether or not anybody was found liable.  It only indicates that an injury occurred, and that the injured person claimed that the injury was caused by an elephant.)

An elephant, no doubt, should be given a great deal of respect, and should also be given a wide berth, and only skilled and knowledgeable persons should handle an elephant.  But when something with an elephant goes wrong, then some of the law that frequently operates “below the radar” may be called upon to sort out the consequences.