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High school is hell, but can Sunnydale be sued for building on top of a hellmouth?

“From beneath you, it devours.”

High school is a rough time for most of us.  Joss Whedon took this basic truth and turned it into brilliance in  Buffy the Vampire Slayer, where high school’s metaphorical terrors turn literal.  And given that high school is hell, where better to locate a hellmouth then directly under Sunnydale High?

Big deal.  So there’s a hellmouth under Sunnydale High, so what?  Well, for parents considering sending their children there, they should know that, while Buffy attended Sunnydale High, the hellmouth was located directly under the library and even when the school was rebuilt they decided to put the hellmouth directly under the principal’s office.  And this hellmouth is not for the faint of heart.  At times there were large, octupi-like demons that would reach up into the libary out of the hellmouth (for example, in The Zeppo, one of my favorite Buffy episodes ever).  Later, under the rebuilt high school, the First Evil stocked up on uber-vampires known as Turok-Hans inside the hellmouth, preparing to take over the world.

Having such a hellmouth under the high school obviously has an impact on the safety (even the life expectancy) of students attending the school.  The question is – can somebody be held responsible for this poor design plan?  And the answer is – yes.

In California, the state in which the fictional Sunnydale High is set, a public entity such as a school can be held responsible for an injury caused by a dangerous condition of its property if you can show that: (1) the property was in a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred; (4) and either (a) a negligent or wrongful act or omission of an employee of the school created the dangerous condition within the scope of his employment , or (b) the school had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

All of the above can certainly be established for students and staff at Sunnydale High.  The Hellmouth is certainly a dangerous condition that caused physical harm and/or death to many students and staff (for example, the great psychologist Mr. Platt).  As for the type of risk suffered (e.g., killed by werewolves, turned into sea monsters), the law does not require that the precise nature of the accident be foreseeable – just that the general character of the event should be foreseeable.  Demonic activity and bizarre metamorpheses are certainly the general types of events that could be foreseen when your school is built on top of a hellmouth.  Finally, while the residents of Sunnydale were willing to turn a blind eye to dangerous conditions that existed in the entire town, an objective outsider would argue that, at least by the end of the first season, the school had active or constructive notice of the hellmouth’s existence.

In sum, Sunnydale High turns on its head the general belief held by courts that “schools are not considered to be dangerous places per se.”  The matriculation rate at Sunnydale High had to be shockingly low, with many sad losses of students, staff, and faculty (although Harmony actually improved after death).  And a good lawyer could have made the school pay for that…assuming, of course, that Mayor Wilkins didn’t kill her first.

 

The Legal Geeks Interview Gabriel Diani on Ghosts, The Selling & Lawyer Movies

The Legal Geeks Jessica Mederson and Joshua Gilliland interview Gabe Diani (Josh’s brother) about The Selling, a movie about selling a haunted house.

The discussion includes stories from The Selling, a review of legal cases with ghosts (note, no part of this video should be considered legal advice on selling a haunted house), Gabe’s Kickerstarter project (along with Huck Finn, Robot Edition) and a pop quiz on lawyer movies.

The Ghosts of Real Property: A Discussion of The Selling

My younger brother Gabriel Diani wrote and starred in a film named The Selling. The premise of the film is that an honest real estate agent has to sell a haunted house to pay for his mother’s cancer treatment.

The film has won multiple awards at film festivals, including the Friars Club Comedy Film Festival, L.A. Comedy Film Festival, Idyllwild International Festival of Cinema, and the Tall Grass Film Festival. My brother recently launched a Kickstarter project for a limited release of the film.

As a big brother, I am very proud of the way Gabe racked up Best Actor awards like they were billable hours on document review.

The legal issues in The Selling included the disclosure of the multiple ghosts in the house (plus murders and demonic possession). The story involved an open house with bleeding walls and other issues that would significantly decease property value.

Let’s review the limited “body” of case law pertaining to haunted home sales in the United States.

They’re Here

When I first saw The Selling, I was instantly haunted by memories of Property in my first year of law school. The specific apparition was the strange case of Stambovsky v. Ackley. The case might be the only time is United States legal history where a Court actually stated, “…as a matter of law, the house is haunted.” Stambovsky v. Ackley, 169 A.D.2d 254, 256 (N.Y. App. Div. 1st Dep’t 1991).

Stambovsky centered on a home buyer who brought an action for contract rescission because the seller did not disclose the house was haunted by poltergeists. Stambovsky, at *255-256. The seller’s family had “encountered” the spirits for nine years. Adding to the failed disclosure was that the fact that the haunted house had been featured in local and national publications, including a walking tour of haunted houses in the area.  Id.

The Plaintiffs lost at the trial level, based on the doctrine of caveat emptor. The appellate Court rejected caveat emptor under the facts of the case, because it conjured “up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale.” Stambovsky, at *257.

The Court held the following:

In the case at bar, defendant seller deliberately fostered the public belief that her home was possessed. Having undertaken to inform the public-at-large, to whom she has no legal relationship, about the supernatural occurrences on her property, she may be said to owe no less a duty to her contract vendee. It has been remarked that the occasional modern cases which permit a seller to take unfair advantage of a buyer’s ignorance so long as he is not actively misled are “singularly unappetizing” (Prosser, Torts § 106, at 696 [4th ed 1971]). Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.

Stambovsky, at *260.

I See Dead People

The 1914 case of De Souza v. Soares from Hawaii is part of the small body of US case law involving haunted houses and property sales.

From The Selling (Photo Courtesy of Gabriel Diani)

In De Souza, the Plaintiff claimed that when she sold her house to her brother-in-law, she executed the sale of her property based on the Defendant’s “misrepresentation that plaintiff’s house was haunted by ghosts and that she could not recover her health while living there.” De Souza v. Soares, 22 Haw. 17, 18-19 (Haw. 1914).

The Court sided with the Defendant in De Souza, finding that the Plaintiff was not credible, because she “was evasive and lacked in frankness.”  De Souza, at *19.

De Souza is a 98-year-old case from before Hawaii was even a state. However, there was no equitable relief as in Stambovsky, because it was not a seller who failed to disclose the “existence” of ghosts haunting the property, but a seller claiming she was tricked into selling because the buyer allegedly said house was haunted. In De Souza, the Defendant was more credible on the facts and the Plaintiff failed to show any fraud.

Grab Her?! That Was Your Plan?!

Barry Bostwick as Father Jimmy in The Selling (Photo Courtesy of Gabriel Diani).

There is very little “ghost law” in the United States, to the point where we cannot even say it is a body of law, but a spectre of cases. This is because of the unavailability of living witnesses, judicial resistance to seances in court and the entire question of proving beyond a preponderance of the evidence the existence an afterlife. It would also give new meaning to ghosting a hard drive.

With that said, we do have clear case law on disclosing a known defect in a house. If you have had TV coverage of ghosts reorganizing your closet or additional lifeless faces in mirrors besides your own, you may need both an old priest and a young priest at your open house.

The Legal Geeks Review John Carter of Mars

Attorneys Jessica Mederson and Joshua Gilliland discussing the John Carter of Mars series, the film and science fiction history.

A Man Goes to Mars: John Carter Reviewed

Not only did the John Carter of Mars series introduce me to science fiction, it also played an important role in my legal education.  Before every exam throughout law school, as well as before the bar, I read one of the first four books in the series (they were always my favorites).  John Carter was so strong, so brave, and so heroic that each time I’d wish – fervently – that I could be a fighting swordsman from Virginia instead of a law student in Texas.  Unfortunately, based on my one semester of college fencing, I was pretty certain that I’d be a horrible swordsman (on the plus side, my fencing master did give me the name “Wonder Woman” as my official fencing nickname, which was awesome).

As a result of my lifelong love affair with John Carter (and Tars Tarkas), I was very excited to hear that they were going to make a movie out of the series (or at least the first book, A Princess of Mars).  The trailers looked exciting but then the reviews began to pour in and I decided that I couldn’t handle the disappointment of seeing Hollywood butcher one of my favorite books.  I skipped seeing the movie in the theaters but this past week, on vacation visiting family, I decided it was time to watch the DVD.

Overall, my expectations for the movie were so low that I was pleasantly surprised by what I saw.  The plotline was closer to the book then I thought (after traveling to Mars through a movie-made twist) – John Carter met the Tharks first, Sola was placed in charge of him, Woola became his devoted and ferocious pooch, Zodanga and Helium were at war and only by agreeing to marry Sab Than could Dejah Thoris save her people.  I didn’t mind the twist on how John Carter was transported to Mars, or the changed role of the Therns.  They were clearly setting it up for a sequel and I am curious to know whether they planned to follow the lines of the second and third books in the series.

The biggest disappointment I had with the plot was that they didn’t focus much on John Carter’s time with the Tharks.  Not only was that where he received much of his education on the ways of Mars, but the book also devotes a great deal of time to his friendship with Tars Tarkas.  Tars Tarkas is one of the best characters in the series – he’s a great leader, compassionate, intelligent, courageous – and his friendship with John is the backbone of the early books.

On the other hand, I appreciated the fact that they changed Dejah Thoris.  As a woman, reading old science fiction is always a bit frustrating because, while authors such as Burroughs and Alex Raymond (of Flash Gordon fame) would try to create strong woman, it was within the context of a different time.  As a result, these women just aren’t strong enough for 21st Century sensibilities.  By making Dejah a brilliant inventor who was also physically able to defend herself, they made a female lead that I could enjoy without hesitation.

That leaves only John Carter himself – Taylor Kitsch.  Taylor’s had a rough year, with his two big action leads (John Carter and Battleship) doing poorly at the box office.  In the trailers for John Carter I didn’t like Taylor Kitsch in the lead role at all.  By the end of the actual movie, I decided he wasn’t objectionable but in no way could he fill John Carter’s metal – and not just because he wasn’t physically large enough (a problem Tom Cruise will also have in the Jack Reacher film).  No, the biggest problem with Taylor’s portrayal of John Carter was that he didn’t capture John Carter’s love of a good fight and respect for courage.  In a world in which warriors were revered, he was also the best warrior by leaps and bounds.  But Taylor’s portrayal of John Carter conveyed none of that, although that may not have been his fault.  The movie told a story of a Man of Mars who was sad, disillusioned, and out only for himself.  What made the books so special, on the other hand, was that John Carter never shirked a fight,  was always willing to jump to the aid of any brave soul fighting overwhelming odds, and fought with steel in his hand and in his eyes.  That’s the John Carter I love – the reason I read his books every semester before exams, and without that John Carter there is no reason to make a movie about the books, which is why the movie failed.

[Geek Note: Edgar Rice Burroughs’s portrayal of Mars as a planet filled with canals was based on a view popularized by the astronomer Percival Lowell, who also founded the Lowell Observatory and began the effort that led to the discovery of Pluto.  You can read more about him and the search for Pluto in Bill Bryson’s fantastic and funny book, A Short History of Nearly Everything.]

 

Top Ten Reasons I’d Rather Be a TV Lawyer

I loved legal shows even before I knew I was going to be a lawyer.  Now, after more than a decade in the profession, I still enjoy legal shows, even as they drive me nuts with their inaccurate representations of a lawyer’s life.  Of course, the shows have to be inaccurate – nobody would voluntarily watch someone in drab business casual attire stare at a computer, type an email, or anxiously check their Blackberry during family dinners and vacations.   Most real attorneys have pretty dull jobs, punctuated by brief periods of intense stress and action (although said action isn’t very active either).  That’s why TV lawyers can’t be like real lawyers, of course, and it’s also why I’d rather be a TV lawyer.  Here, in no particular order, are the top 10 reasons I’d rather be a TV lawyer:

  1. The sex.  The hot, awesome, crazy sex they always seem to have time for – in a partner’s office, in a judge’s chambers, in a restaurant bathroom.  I’ve heard some stories of hanky panky in law firms, but the people involved usually aren’t very attractive and the stories are pretty infrequent.
  2. No document review!  Or, if there is document review, it only takes a few hours and then you find the most incriminating words ever written on paper.  Ever.  Then you get to run down the hall, waving the sheet above your head as you burst into the office where the senior partners were just about to give up on the case entirely.  I’ve done a lot of doc reviews and that’s never happened.
  3. Young associates are both seen and heard.  In big law, young associates are relegated to their offices, interacting primarily with paralegals and the mid-level or senior associates who assign them research projects and document review tasks.  On TV shows, baby attorneys who have never seen the inside of a courtroom are given the crucial task of crossing the opposition’s key witness or making closing arguments.
  4. Fabulous clothes.  Okay, it’s not Gossip Girl, but TV lawyers still have some pretty awesome suits and dresses.  And, if you’re a legal investigator, you get to wear leather coats and bad-ass boots.  (I’ve changed my mind – I don’t want to be a TV lawyer either – I want to be Kalinda.)
  5. Detective work.  Forget hours on Westlaw researching cases and legislative history and weeks writing research memos and briefs.  Instead, I’d be out on the streets, knocking on doors, spying on people, figuring out the shady dealings behind the opposing party’s case (although I’d need Kalinda if I really wanted to get it done right).
  6. No ethical concerns.  The Practice was the greatest abuser of legal ethics – I was taking my professional responsibility class when it was on and Bobby broke every rule I learned.  Of course, being a lawyer would be a lot more fun if you could break the professional responsibility rules (see Item #1 above).
  7. Right to a speedy trial.  I haven’t done a statistical analysis, but on TV there’s about 3-4 days between the time lawyers get the case and the time it has to go to trial.  I’ve known actual cases, on the other hand, that drag on for years.  In one case, it took nearly a year just to get to the temporary injunction hearing!  Most cases can get pretty old after a while, so knowing that your current case will be over in about a week would make it much easier to deal with difficult clients and obnoxious opposing counsel.
  8. They have trials!  Yes, they actually go to trial – a lot.  That’s something that doesn’t happen much anymore (at least in big law), which is a major bummer for all of us who dreamed of pounding on a table some day while cross examining a hostile witness.
  9. Theatrics.  It’s Hollywood, so it’s obvious that TV lawyers have to be theatrical and, apparently, the judges are pretty cool with it (although there are many threats of contempt that the lawyers bravely ignore).  In real life, even court’s pretty boring most of the time.
  10. The sex.  After trial is over and they’ve won the biggest judgment ever (or they’ve been unjustly robbed), they all have fabulous sex again.  It’s really awesome and completely unrealistic, but definitely worthy of two mentions.