Leaderboard 728 X 90

Wednesday, July 30, 2008

Premises Liability: The Land for Opportunists

Premises liability is a concept that has a lot to do with my legal tale of woe. And it is the subject of an article in today's Birmingham News that shows just how easily the law can be abused.

Premises liability is the body of law that makes the person in possession of real property responsible for certain injuries suffered by persons who are on the property.

If you were to explain this concept to 1,000 random people and then ask them if they thought the law was fair, my guess is that a sizable majority would say the law is unfair.

How unfair can it be? Consider my situation.

My troublesome neighbor, Mike McGarity, decided not long after he moved in that my property was essentially his property--never mind that, in a variety of ways, McGarity acted like a jackass toward my wife and me almost from the moment he moved in.

First, McGarity built a fence on our yard, taking about 400 square feet of our property. The fence would still be there if we hadn't had our yard resurveyed to determine it was wrongfully erected and forced him to move it. But did McGarity compensate us for the expenses we had incurred because of his screwup? Nope.

Once McGarity had built good will by cheating us on the fence situation, he decided it should be fine if he, his family members, and their guests came and went at will on our front yard (an area that, under covenants and restrictions in our neighborhood, we could not fence in order to keep them out).

When I told McGarity on multiple occasions to keep himself and others from trespassing from his yard onto ours, he threatened to sue me for "harassment." This is the problem that led to us swearing out a complaint against McGarity for criminal trespass third degree, to him being unlawfully acquitted (even though he unwittingly confessed to the crime), and to him filing a bogus lawsuit against me for malicious prosecution.

Fighting that case, and starting this blog to write about the corruption I had witnessed, is what led to my recent termination from UAB.

My wife and I have told this story to a number of people, and two of the most common questions we get are: (1) Why didn't you move? and (2) Why were you so concerned about trespassers?

The answer to the first question is this: We had lived there almost nine years, peacefully, before we had the misfortune of having a jackass move in next door. Don't know about you, but experience has taught me that running away from something is not the best way to deal with a problem--particularly when the law is on our side, and we had every right to use it in order to protect our property rights.

The second question has multiple answers. For one, it's bothersome and irritating to have people running around all over your property all the time. Second, I particularly don't like this kind of behavior when the people involved didn't have the decency to ask permission. Third, McGarity had already proven to be a knucklehead and a cheat, so we didn't want any part of him or anyone connected to him.

But fourth is the issue of premises liability. If any of the people trespassing from McGarity's property had been hurt on our property, we would have been held liable. Even though they were trespassing, because we were aware of them as trespassers, we would have been financially responsible. (Does that sound fair?)

Some folks might say, "Aw, any injury would be minor, and your insurance would cover it. Why worry?"

Well, consider this. The trespassers were constantly running over our concrete driveway and onto our grass. What if one of them had fallen and hit his head on our driveway, suffering head trauma? Yes, our insurance might cover it, but it also might raise our rates sky high or drop us as an insured altogether.

As you can see, for a whole bunch of reasons, it is not a good idea to allow trespassers on your property.

Which brings us to Birmingham City Councilman Joel Montgomery. In April 2007, Montgomery was injured when he fell in a parking lot in the city's Five Points South area. At the time of the incident, Montgomery was charged with public intoxication.

The misdemeanor criminal charge was dismissed by a special prosecutor who said Montgomery had completed alcohol counseling. Montgomery later denied receiving counseling, and the prosecutor tried to reinstate the charge. But a special judge denied the request, saying the deadline had elapsed for prosecuting the case.

Now Montgomery claims in a lawsuit that J.H. Berry and Co., owner of the parking lot where Montgomery fell, is responsible for his injuries--a bruise on his forehead, a broken nose, and a fractured vertebra.

Get this from Montgomery's attorney, Jon Vickers: "My client said he was not drunk, but he had a few drinks while he was out for dinner. He was walking along, looking at his truck when he walked right off the end of the wall and fell face first."

And the "few drinks" had nothing to do with it. Yeah, right.

Do some people have no shame? Not when premises liability and insurance money are involved.

1 comment:

Anonymous said...

a property owner owes no duty to a trespasser, other than not to intentionally injure. no trespasser who falls on your property can sue you for anything and recover.

the rules are diferent for "licensees" (the meter reader) and "invitees" (party guests). in those cases, there is a greater chance you may be liable for a fall.

you are right about montgomery though, that suit is a joke. the lawyer who filed it probably just wanted a little publicity. my guess is that in a few months there will be a small note in the paper noting that the suit was dismissed.