093: Bird Brained

Stella Case No. 093, Originally Published: 10 August 2005

Rhonda Nichols, 40, says she was shopping in the garden center at Lowe’s Home Center in Fairview Heights, Ill., when a wild bird “attacked” her.

“This was no sparrow,” says her attorney, Zane T. Cagle. “The bird was described to us as being about the size of a robin or pigeon.” In other words, it was large and slow — a bird that it would seem to be easier to avoid than, say, a sparrow? But I digress.

Yes, Nichols has an attorney. With Cagle’s aid she has filed suit against the store in Madison County Circuit Court, alleging Lowe’s “allowed wild birds to enter the Gardening area in which customers travel … [and] that said wild birds created a dangerous condition.”

When the bird “attacked” Nichols, the suit says, it caused injuries including “head, brain, neck, including herniation of her C5-C6 and C6-C7 [disks], loss of neurological functions, cognitive skills as well as injuries to her muscles, bones, nerves, and ligaments.”

Sounds pretty serious, but Nichols has returned to work, so apparently the injuries aren’t life threatening or even hampering her ability to make a living. Cagle refuses to say where she works or what she does, but says that the injuries have reduced her earning capacity by “in excess of $3,000.” The suit asks for “at least” $100,000 in damages.

Nichols claims the incident occurred on April 15, 2003, but Lowe’s says no one reported being hit by a bird on that date. Besides, a Lowe’s spokeswoman points out, the garden area is outside, and they have no control over wild birds flying freely in the air around its store.

Yes, you read that right: Nichols was outside the confines of the store, in the open air, yet she claims it’s “negligent” for the store to “allow” birds to fly around in the open.

Still, attorney Cagle says this is part of a large problem. “These wild birds are an issue in many of these types of stores,” he said.

To a rational person, however, that sounds like a pretty bird-brained legal theory.

Sources

• “Woman Sues Store, Claims She Was Attacked by Bird”, St. Louis Post-Dispatch, 13 April 2005.
• “Wild Bird Attack Leads to Cognitive Skill Loss and Lawsuit”, Madison County Record, 13 April 2005.

Case Status

The case was moved to the U.S. District Court for the Southern District of Illinois, since the parties were of different states (Lowe’s was founded in North Carolina — in 1921). District Judge William Stiehl presided.

Lowe’s made a motion for summary judgment — a decision based on the facts presented without a trial.

“Even assuming that birds could reasonably be considered dangerous,” Stiehl wrote in his decision, “a reasonable plaintiff would have either noticed the birds, or would have realized that in any outdoor area full of plant life, contact with wild birds is possible.”

Plus, “The defendant made no effort to conceal the birds from the plaintiff. Plaintiff may argue that she could not have reasonably expected to be attacked by the birds because birds are not considered dangerous. However, to make that argument is to admit that her injury was not reasonably foreseeable.”

Heh! But wait, there’s more:

Illinois law holds that persons or entities who own or control land are not required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious.

The Court finds as a matter of law that plaintiff’s injury was not reasonably foreseeable. Birds are not commonly thought to pose a danger to people.

Defendant had no notice or expectation that one of the birds could potentially attack a customer. If the Court were to impose such a duty on defendant, the magnitude of the burden on defendant, and all gardening centers, nurseries, and other outdoor retail facilities, would be tremendous.

The judge granted the motion for summary judgement, ending the case.

Source: “Stiehl Grants Summary Judgment for Bird Attack at Lowe’s”, Madison-St. Clair Record, 3 Jan 2006.

The case made #4 in the 2005 Stella Awards.

My 2021 Thoughts on the Case

As always, I have sympathy for the plaintiff’s injuries. But life is dangerous, and Lowe’s had nothing to do with her injury, which apparently was not bad enough to either require an ambulance nor notification to the employees of Lowe’s who, I’m confident, would have helped her get care.

Letters

I apparently did a lousy job explaining one aspect of TSA 62’s case, which dealt with a ski instructor who zipped down the slope and crashed into a teen girl. The instructor sued the girl for getting in the way — and lost.

The case write-up concluded that the plaintiff “still didn’t get the message that the person racing downhill is responsible for avoiding collisions — a rule she should well know as a ski instructor.” Quite a few readers missed the “rule” part, and wondered why in heck the little girl wasn’t held responsible.

Read on.

Pete in Colorado: “People who take to the slopes should read The National Ski Association’s Responsibility Code. Most resorts post this around the mountain and many go so far as to print it on the trail maps. You can see it online if you are interested.”

That code, adopted in 1966, notes that first, “Always stay in control and be able to stop or avoid objects.” Second, “People ahead of you have the right of way. It is your responsibility to avoid them.” In third place it gets to: “Do not stop where you obstruct the trail or are not visible from above.” (The young girl, by the way, didn’t stop: she was crossing, and testified that she made it a habit to look uphill before she crossed any slope.)

Matthew in Illinois, “an expert skier of 42 years”: “It took two and a half years for the lawyers and the courts to figure out the eternal skiers law? A ski instructor should be teaching this daily, not suing against it.”

John in Massachusetts: “That is a universal rule for skiing, and it is mind-boggling to me that this took 2.5 years to be settled.”

Joel in Washington: “As a ski instructor, Walker should have been more aware of the associated risks than most. Skiing, much like motorcycle racing, flying, and SCUBA diving (ALL of which I’ve enjoyed over the years) have inherent risks. When one participates in an activity such as skiing, one MUST assume responsibility for potential injury. If I drive too fast down an apparently empty street and run over a child, am I then entitled to sue the child and his or her family for damage to my vehicle, driving record, or health? I think not. Further, if Ms. Walker cared that much about her ‘modeling career,’ she should have taken more care to avoid activities that might hurt her chances.”

Pete in Georgia: “The verdict trial shows a refreshing breath of common sense. Justice would be well-served if Walker were ordered by the court to pay at least 95% of the Lowrys’ attorney fees.”

But…

Craig, “an expert skier and a plaintiff’s trial lawyer from Philadelphia”: “Your highlight and a ‘analysis’ of the story is incredibly stupid. I must assume you are not a skier and know nothing about the law. First, the uphill skier always has the ‘right of way’. Anyone traversing a slope must always look up the hill before attempting to cross. Second, skiing fast & going ‘airborne’ are part of skiing, particularly on an expert slope which appears empty. Assuming she had satisfied herself that the ‘coast was clear’ the uphill skier was entitled to proceed as described. She would not be deemed an ‘out of control’ skier if once justifiably airborne, the downhill skier emerges from the side into her path. As between the two skiers, it is more probable that the younger girl attempting to cross the slope did so (a) without looking; (b) miscalculated the speed of the uphill skier; or (c) could not see the uphill skier because of a sudden and dramatic change in the pitch of the slope.”

Apparently a lot of us are “incredibly stupid” for thinking the very-well-established Responsibility Code actually means something, and that people below are supposed to have eyes in the backs of their heads so they can see the skiers bearing down behind them, in mid-air no less. We can be satisfied that at least the jury got it right.

Rodrigo in Brazil: “As a foreigner, most of the cases presented in your Stella Awards emails amaze me tremendously. But I do have something to say as a compliment to you guys in the U.S.: even a case as ridiculous as this one got heard in two and a half years. Here in Brazil, even the most urgent and important cases take five or more years to get heard. It is really a pity that Americans are wasting their court efficiency in lawsuits that absurd.”

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