COMMON LAW, NOT STATUTE, GOVERNS CAT IN THE CONDO

We are in the pre-suit phase of an upstairs-downstairs dispute between neighbors that was touched off by a cat in the upstairs unit raising the lever-action faucet in the kitchen sink when no one was home. Water damage to the unit below was the result.

Getting to yes on a settlement has been a challenge because our opposing counsel and the occupants he represents appear to have an agenda. So when the facts and the law collide with his assumptions, he ignores the facts and the law and clings to assumptions.

His "proofs" of damage appear to have been "manufactured" to serve an agenda that preceded the proofs, and his assumption that the upstairs neighbor was negligent is contrary to law.

His error is obvious. He has forgotten the basic rule on this subject that is drilled into first-year law students: Every dog gets one bite. True, there is no dog in this fight, and no bite, for that matter. But there is a question of notice.

Under the common law, the owner or keeper of a dog was liable if the dog bit someone only if he was on notice that the dog was prone to bite people. So the first bite was "free," if you will. The first bite put the owner on notice of the dog's viciousness. A statute that has since been enacted imposes strict liability: If an unprovoked dog bites someone, the owner is liable, without regard to notice or carefulness.

Common law negligence governs the case at hand. Our opponents seem to know this but to have forgotten the notice element of the negligence case. They must plead and prove that the owner or keeper of the cat was on notice that the cat was capable of turning on the faucet.

DILETTANTE BUILDER FORCED TO BUY BACK HOUSE

We went to trial against a first-time homebuilder and got a judgment that required him to refund the full purchase price to our client ($280,000.00) and take back a deed to the house. The defendant asserted that he was a "casual seller" on the grounds that he had lived in the house after he built, and therefore he was liable, if at all, only for damages (e.g., costs of repair).

Cross examination of him at the end of trial showed that he was a "builder-vendor" and as such liable to take back the house and refund the purchase price. A snapshot of the house and its front lawn clearly showed a "for sale" sign from one of the national real estate agencies. Under it was a little white sign that could not be read with the naked eye. But a magnifying glass showed that the sign said the house had been built by the defendant's home-building company.

The snapshot was shown to the defendant, who said the white sign was too small to read. The magnifying glass was pulled out and handed to him. "Try this." The defendant pushed aside the glass and the photo, looked the judge in the eye, and told him the sign said the house had been built by his company.

Result: Instead of a judgment for damages, which would have meant that our client had to keep the house, there was a judgment for rescission: The defendant took back the house and refunded the purchase price.

ANATOMY OF A LAWSUIT

By David McCarthy

All lawsuits have three phases: pleading, discovery and trial. In small claims court pleading is simplified, discovery is available only by permission of the court, and the rules of evidence are applied laxly if at all.

Pleadings. Lawsuits start with a plaintiff's complaint, a brief description of the acts and omissions imputed to the defendant and of the injury or damage allegedly caused thereby (e.g., personal injury, property damage, monetary loss).


The defendant will file an answer that admits and denies the various allegations of the complaint, thereby identifying the "triable issues" of the case, the contested questions of fact whose resolution is the purpose of a trial. Sometimes the answer will be accompanied by affirmative defenses or a counterclaim or both, to which the plaintiff will respond in like fashion, i.e., by admissions and denials. Cases can be dismissed on motion at the pleadings phase but that occurs about as often as the Cubs play in the World Series.


Discovery. In the discovery phase the facts that appear in skeleton form in the pleadings are fleshed out. Of the many tools available for this task, three are standard: requests for documents; interrogatories, written questions answered in writing on oath; and deposition, oral questions answered orally on oath. (President Clinton's impeachment woes started with interrogatories in the sexual discrimination lawsuit of Paula Jones that inquired whether other government employees had been subjected to conduct of the kind Ms. Jones complained of.)

Trial. The facts that emerge from the process above described may be lopsided enough to invite a trial avoidance procedure known as a motion for summary judgment. It proposes that trial is not needed because the important facts are undisputed and the judge need only apply the relevant law to the uncontested facts and enter judgment. This tool is used more often by defendants than by plaintiffs because plaintiffs must prove all elements of their prima facie case whereas defendants will prevail if any one element is obviated.

If summary judgment fails (and it often does because the standard of proof is exacting), and if the lawsuit cannot be settled, and if the plaintiff will not voluntarily withdraw it, then what is left is a trial. The office of a trial is to resolve questions of fact, that are still in dispute by the time the case reaches the trial phase. The facts of a case may be tried to a jury or tried to judge. But the law is always determined by a judge and never by a jury.