—It’s not my fault! She recovered her hand, —is it Oscar? Because that’s what I have to talk to you about.
—What’s happened now.
—Because it’s this lawyer. She wants another twenty five hundred dollars Oscar I just don’t know what to do.
—Twenty five hun, but we gave her a three thousand dollar retainer after we paid off the first one.
—Yes but now she says I still owe her this twenty five hundred more dollars or she won’t release all these papers.
—All what papers, where.
—To this other lawyer. Because since she withdrew from the case and I need another lawyer she said this new one can’t be the attorney of record unless I pay her and she gives back all these papers.
—No wait what do you mean, she withdrew from the case.
—Because she said you’ve kept interfering writing her all these letters and calling her up and telling her what to do about the separation agreement and everything so she’s withdrawing from the case, it’s not my fault is it?
—Well she can’t. She can’t Lily, she can’t withdraw just like that. Fifty five hundred dollars for what has she done, that long garbled separation agreement she couldn’t wait to give away everything in sight and even that isn’t signed, it’s ridiculous. She can’t.
—But I asked this new lawyer and he says she can Oscar.
—What new lawyer.
—Well I thought I’d get a man one again, like before, so . . .
—It’s ridiculous, no. No, we can take it to arbitration, take the whole thing before a grievance committee and . . .
—But he said those committees are just all these other lawyers so they have to protect each other because they may be next so . . .
—Who said! And what if she can quit, listen I don’t even know what these hospital bills will be, an insurance man’s coming up here later and I’m not even sure that they’ll pay, can’t you ask your brother? I’m afraid to write a check for a dollar, all this money he’s getting from your father so the government can’t get it, can’t you ask Bobbie?
—Bobbie wants to buy a Porsche . . . Her head came down to rest on the edge of the bed, —I just get so tired, Oscar . . . and her hand followed, burrowing under the sheet. —It’s just all Bobbie, it’s everything for Bobbie, they won’t even talk to me and they’ve joined some church down there, that’s the only letter they’ve sent me about how glorious it is to be saved and how happy I’d be if I’d just accept the Lord while this woman that stole my purse is out there someplace pretending she’s me with all my credit cards and everything where she used my bank credit card before I could stop it so these other real checks I wrote bounced, I can’t even identify myself and she’s buying these plane tickets she could be in Paris right now being me and I don’t even know what I’m doing there till I get this bill for these lizard skin shoes I bought at some store in Beverly Hills where I always wanted to go, and it’s spooky.
His hand had come down to smooth her hair, a finger limned her ear, traced her brow; hers came deeper, soothing a rise there under the sheet. —We’ll get it straightened out as soon as . . .
—She’ll find out it’s not so easy being me though, that it’s not as much fun being me as she thought, does this hurt?
—Just, be careful, I . . .
—Mommy kiss and make it well?
—Not, not here no, no not now . . .
—But won’t it make you feel better? Where’s a tissue, I’ll get rid of this lipstick.
—Not, not now no, a nurse might come in and . . .
—We can just pretend I’m down straightening the sheet . . .
There was a great thump on the curtain. —Hey there!
—What’s the, who . . .
—Send her over here!
—Who do you, what are you talking about!
—She knows! and another thump on the curtain, —if you don’t know then send her over here. Hey, Mommy?
—Of all the damned, ow!
—Oscar don’t try to, just be still I think somebody’s coming. I better go anyway.
—Wait who is it.
—Just this man Oscar, I better go. I’ll see you real soon.
—What man. In a black suit? Lily wait, how are you getting home.
—This car I borrowed.
—But wait, whose is it.
—This new lawyer . . . and she squeezed his hand, left a blot of lipstick on it and brushed past the curtain, past the next bed with a heated whisper, —You dirty man.
And from the doorway, —Mister Crease?
—Back here, wait. Wait who is it . . .
—Frank Gribble, Ace Worldwide Fidelity, may I come in? in a black suit, —how are we feeling. May I sit down? and he’d done so, flattening a plastic portfolio on his lap, —I hope you’re not in pain? and he had out a yellow pad, —now. Let’s not take too much of your valuable time, Mister Crease. If you can just tell me what happened.
—Of course I can, I . . .
—In your own words.
—Well of course. The car’s ignition was not working. I had to start it by opening the hood and touching a wire from the coil to the positive post on the battery.
—I believe that’s what they call hot wiring. We constantly have reports of cars stolen that way, please go on.
—This is my car Mister Gribble.
—Oh yes, yes I didn’t mean . . .
—The car was in Park. I touched the wire, the engine started, it slipped into Drive and ran over me.
—I see. Then we assume you must have been standing in front of the car? Why were you standing in front of the car, Mister Crease.
—Because there was a mud puddle beside the car Mister Gribble, and I felt it wise not to risk the combination of water and electricity. But all this is irrelevant isn’t it. The insurance covers the car’s owner, doesn’t it?
—But I understand you are the owner.
—I am also the victim Mister Gribble. Now I believe that the usual course would be for the owner’s insurance to pursue the driver, but . . .
—But I understand no one was driving it.
—Which I suppose would leave you the alternative of suing the maker for product liability? It slipped from Park into Drive of its own accord didn’t it? If it had been in Drive at the outset it wouldn’t have started at all. Res ipsa loquitur Mister Gribble, as clear as the chandelier falling on your head.
—Yes well it might be a little difficult, if we could dig up some similar cases and we’d need to examine the car, wouldn’t we.
—Examine the car of course, I only want justice after all.
—It’s garaged at your, at the place of the accident I can’t find the, what kind of car is it.
—Sosumi.
—I’m being quite serious Mister Crease.
—So am I! It’s a Japanese car, a Sosumi.
—Oh. Oh dear, yes I’m sorry, it’s so hard to keep track of them all nowdays. We had a whole family killed last week in an Isuyu and I made a similar error. I think we’ve covered all the preliminaries Mister Crease, I don’t want to tire you. You’ll hear from us promptly, I don’t think there should be any problem about your hospital bills here and I may even be able to squeeze in your television rental without anybody noticing, no sir. Our only problem now is getting you the very best care, if you’ll just sign this right here at the bottom and we’ll have you up in no time ready to go out and, here’s a pen . . .
—And play baseball?
—Right at the bottom there yes, just a formality.
—Quite a lengthy formality, Mister Gribble. I don’t sign things I haven’t read.
—Oh, if you, go right ahead. I just didn’t want to take up your time, I saw the supper cart in the hall and I think you have quite a surprise coming. I’ll just read the newspapers here while you . . .
—You’d better just leave it with me, some other things I’ve got to take care of first, those papers right there on the night table, if yo
u’ll hand them to me?
—This? It looks like something legal, I should have guessed. You’re a lawyer, Mister Crease?
—Thank you. No, I dabble in it, Mister Gribble, I only dabble. Good night.
—You only dabble, do you? came from behind the curtain over eager revelations of a six car collision on Route 4. —Like a little dab of that myself, that was some hot number.
—Be quiet.
—A little dab’ll do you, a little dab’ll . . .
—Shut up! and he settled back into the pillows, squaring his glasses as best he could, managing some sagging measure of dignity commensurate with the pages before him. And so we may as well begin this sad story with the document that has set things off or, better, that merely paced the events that follow, spattered as it was all over the newspapers, since it had nothing directly to do with them, much less its remote participants, distant in every way but the historic embrace of the civil law in its majestic effort to impose order upon? or is it rather to rescue order from the demeaning chaos of everyday life in this abrupt opportunity, as Christina has it, to be taken seriously before the world, in an almost inverse proportion to their place in it, their very names in fact and the inconsequential nature of their original errands, like that woman intending no further than Far Rockaway suddenly lofted to landmark status by Justice Cardozo in Palsgraf v. Long Island Railroad, or the mere passerby rendered eternal by Baron Pollack in Byrne v. Boadle beaned by a barrel of flour whence the doctrine of res ipsa loquitur tendered by Harry in an image more suiting those unnatural persons mounting, in an almost inverse proportion to the millions, billions in settlements, the frivolous legal heights of corporate anonymity, in Harry’s hands become the chandelier he’s dropped here in Oscar’s path, arching his good knee, squaring the pillow, his glasses again, licking a thumb to flick over the cover page of Szyrk v. Village of Tatamount et al., U.S. District Court, Southern District of Virginia No. 105-87, haunted by the sense that ‘reality may not exist at all except in the words in which it presents itself.’
OPINION
CREASE, J.
The facts are not in dispute. On the morning of September 30 while running at large in the Village a dog identified as Spot entered under and therewith became entrapped in the lower reaches of a towering steel sculpture known as Cyclone Seven which dominates the plaza overlooking and adjoining the depot of the Norfolk & Pee Dee Railroad. Searching for his charge, the dog’s master James B who is seven years old was alerted by its whines and yelps to discover its plight, whereupon his own vain efforts to deliver it attracted those of a passerby soon joined by others whose combined attempts to wheedle, cajole, and intimidate the unfortunate animal forth served rather to compound its predicament, driving it deeper into the structure. These futile activities soon assembled a good cross section of the local population, from the usual idlers and senior citizens to members of the Village Board, the Sheriff’s office, the Fire Department, and, not surprisingly, the victim’s own kind, until by nightfall word having spread to neighboring hamlets attracted not only them in numbers sufficient to cause an extensive traffic jam but members of the local press and an enterprising television crew. Notwithstanding means successfully devised to assuage the dog’s pangs of hunger, those of its confinement continued well into the following day when the decision was taken by the full Village Board to engage the Fire Department to enter the structure employing acetylene torches to effect its safe delivery, without considering the good likelihood of precipitating an action for damages by the creator of Cyclone Seven, Mr Szyrk, a sculptor of some wide reputation in artistic circles.
Alerted by the media to the threat posed to his creation, Mr Szyrk moved promptly from his SoHo studio in New York to file for a temporary restraining order ‘on a summary showing of its necessity to prevent immediate and irreparable injury’ to his sculptural work, which was issued ex parte even as the torches of deliverance were being kindled. All this occurred four days ago.
Given the widespread response provoked by this confrontation in the media at large and echoing as far distant as the deeper South and even Arkansas but more immediately at the site itself, where energies generated by opposing sympathies further aroused by the police presence and that of the Fire Department in full array, the floodlights, vans, and other paraphernalia incident to a fiercely competitive television environment bringing in its train the inevitable placards and displays of the American flag, the venders of food and novelty items, all enhanced by the barks and cries of the victim’s own local acquaintance, have erupted in shoving matches, fistfights, and related hostilities with distinctly racial overtones (the dog’s master James B and his family are black), and finally in rocks and beer cans hurled at the sculpture Cyclone Seven itself, the court finds sufficient urgency in the main action of this proceeding to reject defendants’ assertions and cross motions for the reasons set forth below and grants summary judgment to plaintiff on the issue of his motion for a preliminary injunction to supersede the temporary restraining order now in place.
To grant summary judgment, as explicated by Judge Stanton in Steinberg v. Columbia Pictures et al., Fed. R. Civ. P. 56 requires a court to find that ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ In reaching its decision the court must ‘assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party’ (Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11, 2d Circ., 1986, citing Anderson v. Liberty Lobby, 106 S.Ct. 2505, 250911, 1986). In plaintiff’s filing for a restraining order his complaint alleges, by counts, courses of action to which defendants have filed answers and cross claims opposing motion for a preliminary injunction. The voluminous submissions accompanying these cross motions leave no factual issues concerning which further evidence is likely to be presented at a trial. Moreover, the factual determinations necessary to this decision do not involve conflicts in testimony that would depend for their resolution on an assessment of witness credibility as cited infra. The interests of judicial economy being served by deciding the case at its present stage, summary judgment is therefore appropriate.
Naming as defendants the Village Board, the dog’s master James B through his guardian ad litem, ‘and such other parties and entities as may emerge in the course of this proceeding,’ Mr Szyrk first alleges animal trespass, summoning in support of this charge a citation from early law holding that ‘where my beasts of their own wrong without my will and knowledge break another’s close I shall be punished, for I am the trespasser with my beasts’ (12 Henry VII, Kielwey 3b), which exhibit the court, finding no clear parallel in the laws of this Commonwealth, dismisses as ornamental. Concerning plaintiff’s further exhibit of Village Code 21 para. 6b (known as ‘the leash law’), we take judicial notice of defendants’ response alleging that, however specific in wording and intent, this ordinance appears more honored in the breach, in that on any pleasant day well known members of the local dog community are to be observed in all their disparity of size, breed, and other particulars ambling in the raffish camaraderie of sailors ashore down the Village main street and thence wherever habit and appetite may take them undeterred by any citizen or arm of the law. Spot, so named for the liver colored marking prominent on his loin, is described as of mixed breed wherein, from his reduced stature, silken coat, and ‘soulful’ eyes, that of spaniel appears to prevail. His age is found to be under one year. Whereas in distinguishing between animals as either mansuetae or ferae naturae Spot is clearly to be discovered among the former ‘by custom devoted to the service of mankind at the time and in the place in which it is kept’ and thus granted the indulgence customarily accorded such domestic pets, and further whereas as in the instant case scienter is not required (Weaver v. National Biscuit Co., 125 F.2d 463, 7th Circ., 1942; Parsons v. Manser, 119 Iowa 88, 93 N.W. 86, 1903), such indulgence is indicative of the courts’ retreat over the past century from strict liability fo
r trespass (Sanders v. Teape & Swan, 51 L.T. 263, 1884; Olson v. Pederson, 206 Minn. 415, 288 N.W. 856, 1939), we find plaintiff’s allegation on this count without merit (citation omitted).
On the related charge of damages brought by plaintiff the standard for preliminary relief must first be addressed. Were it to be found for plaintiff that irreparable harm has indeed been inflicted upon his creation, and that adequate remedy at law should suffice in the form of money damages, in such event the court takes judicial notice in directing such claim to be made against the Village Board and the dog’s master in tandem, since as in the question posed by the Merchant of Venice (I, III, 122) ‘Hath a dog money?’ the answer must be that it does not. However, as regards the claim that the dog Spot, endowed with little more than milk teeth however sharp, and however extreme the throes of his despair, can have wreaked irreparable harm upon his steel confines this appears to be without foundation. Further to this charge, defendants respond, and the court concurs, citing plaintiff’s original artistic intentions, that these steel surfaces have become pitted and acquired a heavy patina of rust following plaintiff’s stated provision that his creation stand freely exposed to the mercy or lack thereof of natural forces, wherewith we may observe that a dog is not a boy, much less a fireman brandishing an acetylene torch, but nearer in its indifferent ignorance to those very forces embraced in the pathetic fallacy and so to be numbered among them. We have finally no more than a presumption of damage due to the inaccessibility of this inadvertent captive’s immediate vicinity, and failing such evidentiary facts we find that the standards for preliminary relief have not been met and hold this point moot.
Here we take judicial notice of counterclaims filed on behalf of defendant James B seeking to have this court hold both plaintiff and the village and other parties thereto liable for wilfully creating, installing and maintaining an attractive nuisance which by its very nature and freedom of access constitutes an allurement to trespass, thus enticing the dog into its present allegedly dangerous predicament. Here plaintiff demurs, the Village joining in his demurrer, offering in exhibit similar structures of which Cyclone Seven is one of a series occupying sites elsewhere in the land, wherein among the four and on only one occasion a similar event occurred at a Long Island, New York, site in the form of a boy similarly entrapped and provoking a similar outcry until a proffered ten dollar bill brought him forth little the worse. However, a boy is not a dog, and whereas in the instant case Cyclone Seven posed initially a kind of ornate ‘jungle gym’ to assorted younger members of the community, we may find on the part of Spot absent his testimony neither a perception of challenge to his prowess at climbing nor any aesthetic sensibility luring him into harm’s way requiring a capacity to distinguish Cyclone Seven as a work of art from his usual environs in the junk yard presided over by defendant James B’s father and guardian ad litem, where the progeny of man’s inventiveness embraces three acres of rusting testimony thereto, and that hence his trespass was entirely inadvertent and in good likelihood dictated by a mere call of nature as abounding evidence of similar casual missions on the part of other members of the local dog community in the sculpture’s immediate vicinity attest.