Turning Over a New Leaf

Turning Over a New Leaf

Turning Over a New Leaf: Re-imagining a Case Through Comprehensive Case Analysis

The Smith, Freed & Eberhard team of Partner Ryan McLellan and Associate Sean Conner recently won an impressive motion for summary judgment in defense of a construction company faced with a wrongful death suit. Their creative reframing of the case led the plaintiff to raise the white flag, turning hundreds of thousands of dollars in anticipated liability into a prompt dismissal.

The Background Story

Ryan’s and Sean’s client (the defendant) was contracted to replace a ferry crossing in a remote area along the Willamette River. As part of the project a large pit of about 30 feet in length and 10 feet deep was dug. Large signs and roadblocks were put in place to close the road and work area, and to alert anyone who might venture out toward the construction. In 2011, a few months into the project, an elderly woman with partial dementia presumably became lost from her usual shopping route around town and ended up at the worksite well after dark. After attempting to drive around the barricade, her car became stuck and she exited the car, crossed the barricade, and fell into the pit, later dying of hypothermia. The plaintiff alleged that the lack of fencing around the pit constituted negligence on the part of the defendant.

The Strategy

Ryan and Sean received the case in the middle of litigation as a transfer from another attorney. At that time, the defense was relying on the argument that it was not foreseeable that someone would approach the remote worksite late at night, ignore the signage and roadblocks, and become injured. However, the preceding defense counsel still estimated a low possibility of settlement and an anticipated verdict of around $300,000 if taken to trial.

During the initial review of the file, Ryan and Sean determined that a specific legally defined duty under premises liability would trump the general duty under negligence in this case. Under premises liability, the duty owed is predicated on the status of the person on the land. Generally that requires a possessor of land to maintain the land in a reasonably safe condition. However, because the decedent in this case was trespassing, the only duty required of the defendant was to avoid injuring the trespasser through willful and wanton conduct.

The Outcome

Upon developing their new strategy, Ryan and Sean moved for summary judgment – an option that had been disregarded by previous counsel based on their general duty negligence analysis. In response, plaintiff’s counsel agreed to dismiss the case if costs were waived. As a result of their careful case analysis, Ryan and Sean were able to save their client hundreds of thousands of dollars.