John G. Browning 2017-11-23 12:20:42
From the Sublime to the Ridiculous The legal system—just when you think you’ve seen everything, it throws you a curveball you never saw coming. An “attack rooster”? A “motion to spread death”? How about filing a response 21 years late? In this month’s column, we’ve got all of that and more. Let’s start with the “attack rooster,” shall we? The Court of Appeals of Georgia probably thought it would be tackling weightier issues in 2017 than the issue presented in Gilreath v. Smith: namely, whether a pet sitter attacked by a rooster assumed the risk of danger from animals in her care. Pet sitter Josephine Gilreath was hired by homeowners Bruce and Jodi Smith to feed their rooster, Sam, but a few clues should have tipped off Gilreath that this was no ordinary gig. The first clue, according to the court, was the warning sign on the Smiths’ property cautioning “Area Patrolled by Attack Rooster Security Co.” Another dead giveaway was the Facebook message from Jodi Smith to Gilreath instructing her “Just throw food in the cages. Rooster will attack!” Finally, there was Smith’s helpful tip to use a trash can lid as a shield. Unfortunately, like those folks in horror movies who insist on going down to the creepy basement, Gilreath ignored all these warnings and was attacked by the rooster, suffering deep wounds in her legs. The appellate court agreed with the trial court’s dismissal, noting that Gilreath had knowledge of the danger, yet exposed herself to the risk anyway. Maybe she just was too cocky. As a young lawyer, I remember being somewhat perplexed when, after a party to a lawsuit died, I was told to file a “suggestion of death.” I’m not “suggesting” anything, I said to the senior partner; “that guy’s as dead as a doornail,” I insisted (something a bit like the Monty Python “Dead Parrot” sketch). My supervising partner patiently explained that this was merely a term of art. At least it’s not as disturbing a term of art as its civil procedural counterpart in Indiana’s Trial Rule 25(A)(2), that a party has died during the litigation and that the decedent’s estate needs to be substituted in, which is frequently referred to as a “motion to spread death of record” or sometimes shortened to the frightening title “motion to spread death.” As silly as “suggestion of death” might seem, this comes across as downright terrifying, unless “lawyer” is just your day job and your real vocation is as one of the Four Horsemen of the Apocalypse. Since lawyers live and die by deadlines, the thought of filing something late is disquieting, to say the least. What about filing a response to the defendant’s motion for summary judgment late—as in over 20 years late? That was the case in a 2016 opinion by Lake County, Indiana, Superior Court Judge John Sedia in Rueth Development Co. v. H&H Rueth, Inc. The lawsuit itself had been filed in 1992, and defendant H&H moved for summary judgment in 1995. But then, inexplicably, the case ground to a halt—that is, until Sedia observed that since no response had ever been filed (despite the case dragging on and Rueth filing numerous other documents over the course of time), he was compelled to grant the summary judgment. In his order, Sedia quoted the interminable but fictional Jarndyce v. Jarndyce case from Charles Dickens’ “Bleak House,” noting that the Dickensian counterpart was “but a literary exaggeration of protracted litigation that is typified by our 1992 case.” The judge also noted that over the case’s 24 years, “we have had litigants, attorneys, and even a judge pass away.” So much for the saying “better late than never.” JOHN G. BROWNING is a partner in Passman & Jones in Dallas, where he handles commercial litigation, employment, health care, and personal injury defense matters in state and federal courts. He is an award-winning legal journalist for his syndicated column, “Legally Speaking,” and is the author of the Social Media and Litigation Practice Guide and a forthcoming casebook on social media and the law. He is an adjunct professor at SMU Dedman School of Law. • THINK YOU’RE FUNNY TOO? PROVE IT! Send your humorous articles of 600 words to firstname.lastname@example.org. Send deposition and trial excerpts to email@example.com.
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