Tuesday, December 05, 2006, 3:17 PM

Beware of Dead Mice and Pine Straw

On a lighter note, the COA decided two weird cases today.

In one case, a domestic dispute for divorce and equitable distribution, the wife was held in contempt for failing to comply with a discovery order, and her counterclaims were stricken. Turns out that not only did she fail to serve responsive discovery by the trial court's deadline, but her late responses included a box of documents with a stinky dead rodant inside. "A strong and unpleasant odor was traced to the boxes, and ultimately, to a dead mouse inside one of them," the COA recounted. And, in probably the first and only time that "rat" and "cake" may be found in one sentence in a judicial opinion, the COA observed (quoting the trial court) that the disocuments were completely unresponsive, "with the dead rat being 'icing on the cake.'"

The wife did prevail on appeal, however: Because the trial court's order failed to consider less severe sanctions before dismissing her counterclaims, the COA was required, under precedent, to vacate the contempt order and remand for consideration of less severe sanctions.

In another case, the COA held that a man was negligent for walking on pine straw. While walking to a newspaper stand at a rest area off I-95, the plaintiff decided to leave the pedestrian walk and take a shortcut over a shrub bed covered with pine straw. Unfortunately for him, metal landscape edging was hidden beneath the pine straw, causing him to lose balance and fall, resulting in a fractured knee and elbow. He sued the State for negligence under the Tort Claims Act. Upholding the Industrial Commission, the COA held that "plaintiff should have had . . . knowledge that deviating from an intended walking path into pine straw brings with it some danger of injury." Because he could have avoided the "danger," he was contributorily negligent.

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