Top 5 Torts I Witnessed on Old Rag
Photo Credit: Author
Last Tuesday, a handful of 1Ls and I found ourselves officially at our limit. Memos due, vague approximations of outlines barely begun, and sudden crushing realizations that this week, we may very well be applying for jobs that we could have for the rest of our lives, are just a few examples of the classic 1L experiences that have been pushing us incrementally towards the edge of sanity. Because 1Ls, as a species, famously possess the coping mechanisms of Chris McCandless, we decided to venture out into the Virginia wilderness before going completely off the rails, and we took our entire section with us. We set out before dawn for Old Rag Mountain—the most popular hiking spot in Shenandoah National Park, and located a blissful hour-long drive away from North Grounds.
But while you can take the law student out of the gunner pit, you truly cannot take the gunner pit out of the law student. As it turns out, being trained bootcamp-style to alter your entire way of analyzing situations can affect you anywhere, even on top of a mountain. Everywhere I looked, I saw something new and relevant to legal study: a possible suit, a new opportunity to apply a doctrine. By mile eight, even the dappled light on the forest floor seemed to morph into twelve-point Georgia text. I could have given up and resigned myself to the fact that I may never be able to innocently enjoy the wonders of nature again. Instead, I chose to embrace this psychotic episode as an alternative study method. For there are hypos everywhere for those with eyes to see.
1. Trespass to chattels
I witnessed a heartbreaking scene early into the hike. Plaintiff (squirrel), a hardworking American just trying to scrape by before winter hits, had scrambled down from a tree with an acorn in her mouth. After burying the acorn for later use, defendant (squirrel) removed the acorn from the ground and promptly absconded. Defendant was later spotted eating said acorn—a clear sign of a desire to permanently deprive plaintiff of her property. Absolutely disgusting. A sickening display of greed such as this has all but assured that a jury will find the defendant liable for 100% of damages.
2. Battery
Whilst walking among the stunning shades of fall that can be found all along the Blue Ridge Mountains, plaintiff (me) was injured in the most heinous of attacks from defendant (tree). Plaintiff alleges that she received the injury from an acorn falling at terminal velocity from the boughs of a nearby tree, and is suing for battery. Defendant could argue that the involvement of an intervening actor—a hungry squirrel—should eliminate all liability on its part. However, the broader legal question at stake here is whether or not a tree can act at all, and therefore can be sued for an act that was intentional as well as harmful or offensive. The policy implications of this decision could shake the very core of the legal profession. Pondering this question has led me to believe that I may need to touch some grass, but now I’m afraid of initiating unlawful contact with the turf.
3. Animal Attack
While one might expect this tort to be another despicable act by another despicable squirrel, plaintiff (me) received her injury from a much smaller source. Defendant (mosquito) inflicted a bite on the plaintiff that resulted in both physical and emotional damage. While the defendant may choose to pursue an argument of custom, it is unlikely to be persuasive to a reasonable jury. Having now entered the chillier part of the year, prudent mosquitoes will have already entered a type of dormancy known as diapause. Defendant was possibly the only mosquito still awake and active in a fifty-mile radius, and yet he still managed to target and injure plaintiff. The biggest complication in this suit will be identifying a suitable defendant to act as the wild animal’s owner, such that plaintiff may sue under strict liability for an animal attack. It is unlikely that a judge will accept that the mosquito is its own owner, but the only other likely candidate is Shenandoah National Park itself. I suppose we will see them in court once this shutdown is lifted.
4. Medical Malpractice
Whilst hopping from boulder to boulder, plaintiff (me) managed to slice her finger—not on the rock, but on her own fingernail. Caught up in the fervor of youthful scrambling, defendant (me) neglected to actually examine and treat the injury until at least twenty minutes later, at which time the cut was already stinging. Any reasonable jury could find that this was an inappropriate delay in screening by the defendant, such that it could have amounted to no screening at all, since the status of the plaintiff’s injury had already progressed from a scrape to a stage-four owie. While plaintiff’s first instinct was, indeed, to sue defendant for a violation of EMTALA’s screening requirement, plaintiff was not in a hospital with emergency room capabilities at the time of treatment, so the statute would not be applicable. Plaintiff may instead seek damages through a good old medical malpractice suit. As the Band-Aid was administered without proper licensing, plaintiff may yet have a strong case.
5. Negligence
Negligence was positively pervasive on the Old Rag Circuit. Though, thankfully, no incident gave rise to a sufficient cause of action during our outing, the opportunities for injuries were bountiful. Steps and drop-offs with no handrails, low-hanging branches with no caution signs, and roots unmarked by visible yellow paint. It was enough to make an OSHA inspector sob. While the natural wonder of Virginia shone all around me, all I could do was shudder as I thought of what would happen if the plaintiff in Reynolds v. Texas & Pac. Ry. Co. found herself on this trail. My official legal advice to Shenandoah National Park? Save yourself from future lawsuits. You have enough trouble with the government shutdown. Exercise reasonable care by individually bubble wrapping every hiker who walks up this mountain and slapping a football helmet on their domes.
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Emma Lawson ’28
hzk2ny@virginia.edu