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103-year-old tombstone falls on Paso Robles girl

October 31, 2011

By KAREN VELIE

Attorneys for the Paso Robles Cemetery District are battling over who is responsible for maintaining tombstones after an aged-grave marker fell on a four-year-old Paso Robles girl breaking her ankle.

Last year, Heather Wolcott was visiting the Paso Robles Cemetery with her daughter Lauren when the more than 100-year-old tombstone of Richard Wear fell off of its base onto Laurens ankle. Wear was born in 1847 and died in 1907.

Nevertheless, graveyard district officials said in court filings that they do not own the tombstone and are not responsible for injuries caused by the dangerous conditions of their graveyard’s markers.

Wolcott’s attorney James McKiernan said that from a layman’s perspective it is ridiculous to expect relatives of the deceased to maintain a grave marker and from a law perspective the district is required to protect public safety and maintain its cemeteries.

“In my entire lifetime, I’ve never heard of anyone getting a notice to come on down and spruce up your great grandfather’s grave,” McKiernan said.

On July 28, McKiernan filed a lawsuit claiming negligence, willful failure to warn, and dangerous condition of a public property.

In the lawsuit, McKiernan argues that Health and Safety Code 9004 mandates that “the district that owns a cemetery shall have exclusive jurisdiction and control over its maintenance and management.”

The attorney firm for the district, Roseville based Hunt and Jeppson LLP, fired back by filing a demurrer which challenged the legal sufficiency of the lawsuit saying it was “skeletal” at best.

San Luis Obispo County Superior Court Judge Jac Crawford ruled the cemetery attorney’s demurrer was gravely wrong and is permitting the lawsuit to proceed.

With the cemetery district objection now buried, McKiernan said he anticipates a resolution sometime in the near future.

Lauren Wolcott


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WHO is liable and who is NOT cannot be the issue here. It’s a plain and simple fact and both sides agree that the child will get money out of this. Today they are simply pawing the dirt trying to figure out how much.


Welcome to California!


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Our kids are adults now, but when they were teens, we would take them to the PR Cemetery on Memorial Day out of respect to veterans. We would look for the oldest grave marker and the oldest and youngest person. We made sure that our kids understood that the only allowed emotions were respect and introspection.


I am familiar with the Wear headstone as it is an old one. JM better not get me on the jury.


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Now. Now.


Do we all believe in the rule of law (Libya, Syria, etc. …)?


Okay…


Google :”attractive nuisance doctrine” all u smart pants.


And you will find a rule of law older than the tombstone :


Children are playful and curious – traits which are important for learning and exploration, but which can also land them in dangerous situations. Everyday objects on other people’s property can irresistibly draw children onto the property, but also present them with hidden dangers.


If your property contains items that both draw children in and threaten them with harm, the law places a special responsibility on you to take steps to protect the children who may come onto your property. This duty is generally called the “attractive nuisance” doctrine.


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It’s a foolish law that should be changed, then. Children should be taught from an early age that it’s inappropriate to go uninvited onto private property, or to play without permission in, on, around, or with any thing not belonging to them. And any parents who allow their child to play on a tombstone, “attractive” though it may be, are teaching their child an appalling lack of disrespect. I’m sorry that the little girl got hurt; but if the stone fell because she was playing on it, her parents are to blame, not the cemetery.


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In most foreign nations, Napoleonic law is the rule. If you are stupid enough to climb up on a public statue and fall off, it is entirely your responsibilty…

I feel bad for the child but where were her parents?


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I don’t think the cemetary district has a ghost of a chance avoiding liability in this case. Unless the four year old had a Ph.D. in physics, she could hardly be expected to understand “the law of the fulchrum.” If she was climbing on a tombstone, to her this “attractive nuisance” was probably just a big rock.


Since the cemetary is open to the public, the district owes its visitors a certain “duty of care,” to see that no injury comes to them while they are on the premises. That standard of care either increases or decreases depending upon whether the visitor is an “invitee,” a “licensee” or a “tresspasser.”


An “licensee” is one who is given permission to be on the premises by the district to engage in activities connected to the business, such as an employee or a client. A licensee is owed the greatest duty of care because the relationship benefits the business.


One who is not an employee may also be considered a “licensee,” when one ventures into areas not normally open to the public but which are nevertheless accessible. Such is the case when someone is looking for the restroom, and ventures through the wrong door. One who is permitted to be in areas where the public usually does not go is also referred to as a “permittee,” because the permission is “apparent” (implied) by virtue of the unlocked door.


The general public are considered “invitees” any time they enter areas that are by their nature public, such as stores, parks, and public buildings. The “invitation” is not express, but it is presumed. One’s presensce may or may not benefit the business. Thus, these visitors are owed only a standard or “reasonable” duty of care. And they assume the risk that ordinarily accompany activities and premises which are accessible to all.


The “tresspasser” is owed the least duty of care because s/he was not invited, and he/r presence was neither expected nor wanted. Yet, even to he/r, some duty of care is owed, and the owner of the premises can be held liable for injuries caused by a defect of the property which is not “apparent” (not to be confused with “apparition,”) and where, if the defect is not cured, injury is foreseeable.


I rest my case….


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McKiernan is that you?


BTW – The 4 year old might not know better but the mother should. A cemetery is not a playground. Children are to be supervised and not allowed to climb on old tombstones.


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bullseye

says:

11/01/2011 at 8:23 pm

Now. Now.

Do we all believe in the rule of law (Libya, Syria, etc. …)?

Okay…

Google :”attractive nuisance doctrine” all u smart pants.

And you will find a rule of law older than the tombstone :

Children are playful and curious – traits which are important for learning and exploration, but which can also land them in dangerous situations. Everyday objects on other people’s property can irresistibly draw children onto the property, but also present them with hidden dangers.

If your property contains items that both draw children in and threaten them with harm, the law places a special responsibility on you to take steps to protect the children who may come onto your property. This duty is generally called the “attractive nuisance” doctrine.

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You plea a good case, but where is the negligence of the property owner? The “proximate cause” of the injury was likely caused by the child’s own actions, therefore, the parent has the “duty of care”. The insurance company for the property owner will cite “proximate cause” and likely decline the claim. The contract for the plot likely has a “hold harmless” agreement built in, holding the cemetery harmless. The family of the deceased will likely also not be found under “proximate cause”.


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Why is it that people never talk about the obvious fact that the attorneys get 50% of any award, and the victim only gets the other 50%. 50% is a huge amount, especially if it is a slam-dunk case, which most attorneys dream about and salivate over. It can make a year’s salary for an attorney, or can be enough money for many year’s salary if they hit the jackpot. And the attorneys always justify it that “it will send a message,” but never say to whom or how. It rarely sends any message to anyone and is just a rationalization for gaining a huge amount, often without much effort, and leaves the victim with only 1/2 of the award to nurse their wounds, often for life. I know I would feel guilty leaving a poor paralyzed person with only 1/2 of an award, and I can take my 1/2 and blow it on cars, vacations, jewelry, SUV’s, remodeling houses, etc.


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The California Supreme Court, in the case of Rowland v. Christian (1968) 69 Cal. 2d 108, did away with the common law distinctions of to whom a duty is owed by a property owner.


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I think publishing the little girls picture is inappropriate. Not needed to make your point that this is a joke lawsuit. The parents are the ones suing, publish a photo of them if you need to put a face on the faux outrage.


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Why is it every time someone gets hurt, some ambulance chaser lawyer has to get involved and sue? This is ridiculous. I wasn’t there, so I don’t know what happened, but I remember going to the cemetery as a kid and my dad would not let me climb on the headstones out of RESPECT for the deceased.


In this case, can’t this be chalked up to an accident with no one to blame. Come on, accidents do happen right? Does every accident need to have someone to blame and then sue?


I hope the little girl’s ankle heals up great, but this accident need not end in a law suit.


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As someone who knows this family well, the situation was not due to neglect of the family but neglect of the cemetery. The family went to visit the grave of their grandmother on her birthday and also went to find other family graves. The chid simply placed her hand o the stone as she walked by. The morter was so old that the stone fell. Not everyone is sue crazy. This parent witnessed her child get injured and simply wants to cover reasonable medical expenses and keep other visitors to the cemetery safe.


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You say the parent simply wants to recover reasonable medical costs. I can assure you the attorney fee alone is going to surpass that cost by many times over.


Did the mother contact the cemetery prior to contacting an attorney? Many properties carry liability insurance for small mishaps. It’s not uncommon for property to be covered with 5 or 10K of liability insurance for nuisances that occur. If this incident occurred on my property, my home owners insurance would have paid 10K for the injury and that was just standard when I purchased the policy. 10K would certainly cover the cost of a broken ankle. I would imagine this family has medical insurance but again if not, what does a broken ankle cost? Certainly not enough to file a law suit , heck they could have taken this to small claims court for $7,500.


Come on. what is reasonable? This family is OBVIOUSLY looking for some BIGGER BUCKS and not just reasonable medical costs. It’s a shame. I’ll leave it at that.


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Cindy – depending on whether this little girl had to have surgery on her broken ankle the cost goes sky high. I have been through this process and a broken ankle – for surgery alone – cost over $30,000.00. That does not include every other bill from all the providers/x-rays, anesthesia, etc… orthopedic follow up, physical therapy afterwards.


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Surgery, compound fracture, physical therapy? There is nothing in this story about that. It sounds like a simple broken ankle . As for physical therapy, this is a 4 year old, not a 40 year old. We all know how quick kids heal from broken bones. Like I said, did they contact the cemetery prior to retaining an attorney or was it a run for the FREE money excuse?


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I call B S!!!! The child didnt “simply” place her hand on it. Come on now….And just because you know this family doesnt change my mind. Your just like them!! Your sue crazy to sue over something like this.


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If the stone was all that unstable and fell from a child simply placing her little hand on it, the laws of physics and gravity would dictate the stone would have fell away from her, not toward her. I don’t believe a small child simply placed her hand on a stone that large and it fell over. I seriously doubt that the mother even saw what happened. She was undoubtedly looking at grave markers while the child was running around climbing on the stones. I would not give them any settlement apart from maybe the actual medical cost and they can pay their own attorney fees out of it.


They really should have gone about this differently and inquired as to what insurance might have been available from the cemetery . It probably wasn’t enough to satisfy them even though it would have covered the medical bill.


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So this family couldn’t have asked the cemetery directly for the covering of “reasonable medical expenses” without contacting a lawyer?


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Looking for a quick pay day and James McK. to boot!


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Generally speaking, the only people getting rich in the lawsuits are lawyers.


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If the correct tombstone is shown in the picture, then the child would have had to be standing on it or very close to it, in order for it to hit her on the ankle.


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That tombstone must be the one. It say’s Richard Wear on it. I don’t think it fell down all by itself.


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It fell down because it was worse for Wear.


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