Montgomery County jury gives goose-egg to woman attacked by bird

Daily Record, The (Baltimore), Dec 10, 2007 by Caryn Tamber

In the end, the jury determined that the presence of the fowl was fair.

Suzanne L. Webster sued a shopping center and a retailer after a Canadian goose on the property ran into her, causing her to fall and break her hip. She argued that the defendants had not done enough to block the goose from nesting there or to warn people that it was aggressive.

Last week, a Montgomery County jury found for the defendants, Rockville Pike Properties L.P. and Contemporary Watercrafters Inc.

"It was a typical premises liability case, except that the dangerous condition was a Canadian goose," said Terence O'Connell of O'Connell, O'Connell & Francuzenko LLC, who represented Rockville Pike Properties.

According to Larry J. Feldman of Cohen, Snyder, Eisenberg & Katzenberg P.A., who represented Webster, a pair of geese had nested at the shopping center in 2003. The shopping center and Contemporary Watercrafters -- a pool and spa store -- knew they were aggressive and planned to keep them out in 2004 by covering the nesting area with construction fencing.

They planned to put up the fencing in April 2004, but the geese set up shop in March; something that the store and shopping center would have anticipated had they done basic research on Canadian geese, Feldman said.

Once the geese showed up and laid eggs, "the defendants took reasonable steps," O'Connell said, but removing the birds would have been difficult.

"[T]heir hands were tied by statutes which protected the geese and precluded any actual removal of the geese or the eggs during the hatching period, except in rare cases where a federal permit is issued out of an office in Massachusetts," he said.

Feldman and Webster said they believe the case was hurt when the federal government quashed their subpoena of a Department of Agriculture employee, who would have testified that had the shopping center called about the geese, they and their eggs could have been picked up right away.

Still, even without that evidence, it was clear that Contemporary Watercrafters made the situation worse, Feldman said. Employees there fed the geese, named them Al G. and Chloe -- as in algae and chlorine -- and put a notice in their customer newsletter about them. They did warn their customers that Al G. could be aggressive, but Feldman said that did not help Webster, who was heading for another store in the shopping center when the goose ran into her.

The defendants argued that there was also yellow police tape cordoning off the nesting area, but Feldman contended that the tape went up after Webster's injury.

Webster was walking to Calico Corners when "out of nowhere came this quacking, snapping goose that attacked me," she said. "I fell down trying to get away from it."

She fractured her left hip and femur and endured a hospital stay, time at a rehabilitation home, rest at home and hours of outpatient therapy, Feldman said.

"I'm in a great deal of pain all the time," Webster said.

After the jury was picked Monday, the parties presented testimony until late Tuesday afternoon. The jury came back after a couple of hours of deliberation Tuesday and Wednesday.

Feldman said he believes the jury was "troubled" by Webster's injuries, but ultimately concluded Rockville Pike Properties and Contemporary Watercrafters could not have prevented them.

"I think it was hard for the jury to get off of the fact that this was a wild animal," Feldman said. "Nobody owns a bird and I think it was hard for them to grasp my theory of negligence, and [they] also felt as though they had to come down on the side that nothing could have been done."

Suzanne L. Webster v. Contemporary Watercrafters Inc. and Rockville Pike Properties L.P.

Court: Montgomery County Circuit Court

Case Number: 269192V

Proceedings: Jury trial

Judge: Terrence J. McGann

Outcome: Defense verdict

Dates: Incident: Apr. 5, 2004; Suit filed: Feb. 14, 2006; Disposition: Dec. 5, 2007

Plaintiff's Attorney: Larry J. Feldman of Cohen, Snyder, Eisenberg & Katzenberg P.A.

Defense Attorneys: Terence O'Connell of O'Connell, O'Connell & Francuzenko LLC for Rockville Pike Properties; Anthony Dwyer of Law Offices of William C. Batton for Contemporary Watercrafters

Injuries Claimed: Personal injury

Damages Sought: $61,000 for medical expenses; $100,000 for pain and suffering

Award: None