Turning Over a New Leaf

SFE Attorneys: Ryan McLellan & Sean Conner

Plaintiff Attorney: Travis Prestwich

State & County: Oregon, Marion County

Claims Alleged: Personal Injury

Injuries Alleged: Wrongful Death

Amount Claimed: $715,000

The Overview

 Smith Freed Eberhard partner Ryan McLellan and (now) partner Sean Conner achieved an impressive motion for summary judgment in defense of a construction company faced with a wrongful death suit.

The Background

Ryan and Sean’s client was contracted to replace a ferry crossing in a remote area along the Willamette River. The project required a large pit (about 30 feet long by 10 feet deep) to be 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 construction, 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. The woman attempted to drive around the barricade, but her car became stuck. She then 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 matter came to Ryan and Sean 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.

Our Strategy

During 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

Ryan and Sean moved for summary judgement under their new trespassing theory. Previous counsel had disregarded this possibility based on their general duty negligence analysis. In response to Ryan and Sean’s motion, plaintiff’s counsel agreed to dismiss the case if costs were waived. Such creative re-framing of the case ultimately led the plaintiff to raise the white flag, turning hundreds of thousands of dollars in anticipated liability into a prompt dismissal.

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