In late 2011, 30-year-old Arlington man Jeremy Gandy broke into the premises of popular outdoor-adventure destination Camp Thurman after hours in Pantego. Arriving on the grounds between 3 and 4 a.m., Gandy had been drinking heavily before his decision to enter the camp; after climbing over a rear fence, he scaled a 30-foot zip line tower via a rope "cargo net" ladder. He unfortunately slipped off the platform at the top, falling back to the ground. The force of the impact delivered blunt-force trauma to his head, chest, and arm, and he died at the scene.
Did Camp Thurman owe Gandy a duty to keep its premises safe after hours?
Estate of Jeremy Gandy v Pantego Camp Thurman, Inc.
The mothers of two of Jeremy Gandy's children, Monica Cooper and Erica Polo, filed suit against Camp Thurman in the days that followed his death. The plaintiffs sought damages of over $1 million as compensation for allegations of pain and suffering, mental anguish, loss of parenting services, and loss of inheritance.
Cooper's and Polo's position was that the camp failed to properly safeguard its premises, given that its staff was allegedly aware of many people trespassing on the grounds after hours. Gandy himself was said to have often entered the grounds in similar fashion. The plaintiffs went on to say that the the camp did not have adequate warning signs and safety measures available given its foreknowledge of unsupervised visitors. They believed that Camp Thurman should "do the right thing," and that its behavior in the trial was "not Christian-like."
The organization's specific mission statement is "to provide for all ages safe, fun, wholesome outdoor programs, which demonstrate God's love, while helping individuals discover who they are in Christ." There is nothing in this core tenet about vigilant protections of trespassers, but one can surmise the plaintiffs believe the generally "Christian" thing to do would be to ensure the safety of any visitor, no matter the legality or hour of the visit.
A request for summary judgment was filed by the defendant's attorney, given that Gandy was on the premises illegally at the time of his passing. This motion was rejected, and the resultant trial lasted several days. The jury eventually found in favor of Camp Thurman, absolving it of liability in Gandy's death.
Why Did the Camp Win? Texas Premises Liability Law
Given the particulars of Gandy, the defense was able to argue strongly on Camp Thurman's behalf:
- A Tarrant County medical examiner's report confirmed that Gandy was intoxicated at the time of the accident. Analysis of his blood and urine yielded a blood-alcohol content of 0.198, over twice the legal limit used to determine a party's fitness for driving. Traces of marijuana were also found in his system. A witness confirmed she and Gandy had gone to the camp after drinking at a nearby bar; Gandy's BAC virtually guarantees that his decision-making skills were compromised. This is not to assume any kind of moral high-horse about that--no one is above lapses in judgment, whatever their source. However, inebriation must be considered as a factor when looking at the sequence of events: Might Gandy have reconsidered trespassing, or at least exercised more caution in ascending and standing on the tower, were he sober at the time? The defense attorney would likely have stressed this element during the trial.
- Reasonable precautions were taken by the owners of the camp to prevent unsupervised use of the tower. The front gate was locked; Gandy and a female companion gained entry by scaling a fence between Camp Thurman and an adjacent property. Moreover, the zip line tower's spiral access staircase was blocked by another locked gate, precipitating Gandy's ascent on the cargo-net ladder.
Given that the park was known to be closed and the primary point of ingress to the tower was blocked, reasonable precautions were met to limit access to the platform. Gandy acted with determined recklessness by making use of the cargo net ladder to make his ascent.
- Generally speaking, premises liability law is not overly accommodating to trespassers. Under general circumstances, someone who does not belong on a property (was not invited or did not arrive during business hours, is not a staff member or administrator) is not entitled to seek damages should he or she sustain injury on the property. In other words, the property owner does not owe a duty to the trespasser, because his presence is not reasonably anticipated outside of normal hours of operation. Texas law is oriented in this straightforward fashion, as noted in the text of Texas Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193:
The property owner only owes a trespasser the duty not to injure him willfully, wantonly or through gross negligence.
Had a park employee willingly let an inebriated Gandy onto the grounds unsupervised, or actively pushed him down from the platform, there might be grounds for liability. Similarly, if the camp and zip line towers had no prohibitions to access--no gates or locks--one might again allege they are liable for negligence.
Gandy actually involves some extenuating circumstances, because if the plaintiffs were right that many locals infiltrated the property outside of business hours, the camp cannot claim such an event falls outside reasonable expectations. Some states make provisions for these discovered or tolerated trespassers, and adequate warning signage and safety precautions are required to take care of people who may be there outside of a business's standard hours of operation.
The plaintiffs' attorney also made the argument that the zip line tower constituted what is called an attractive nuisance. This generally means that something, in structure or intent, is likely to attract people who should not be there. Unfortunately for the plaintiffs' case, this legal precedent specifically relates to children who trespass because of an attraction to something within the premises:
"...when children of tender years [come] upon the premises by virtue of their unusual attractiveness, the legal effect [is] that of an implied invitation to do so. Such child [is] regarded, not as a trespasser, but as being rightfully on the premises."
Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 847
The argument is not necessarily that the 30-foot tower did not constitute a point of interest to Gandy on the night of the accident, but that as an adult, he is not protected by the codified "attractive nuisance" doctrine. Despite his judgment being impaired to perhaps less than that of a reasonable adult, he retains legal agency and therefore responsibility for his decision to trespass.
The Case Couldn't Win Because The Jury System Works.
I understand the plaintiffs' position that the camp could perhaps have been more stringent with their after-hours security measures. With that said, I agree with the jury's determination that a consenting adult made some unfortunate choices while under the influence of alcohol, and a heavy price was paid. While I naturally wish that such a thing had never happened, it does not seem reasonable to hold Camp Thurman accountable for Gandy's death. It seems furthermore a little questionable to attack the Christian values of an institution for its refusal to accept legal responsibility--especially when it is acquitted in a court of law. This point of view can no doubt be excused given the emotional distress over their losses, both of Gandy himself and of his estate's claim.
Society seems to regard plaintiffs' attorneys as pied-pipers that lead juries around with misdirection and half-truths, all in the dishonest pursuit of a buck. I very much beg to differ with that; attorneys are educated and trained to pursue justice for their clients. Period. They are not base manipulators, but instead are exhaustively trained in the art of explaining the facts in a manner that creates a coherent picture--a case.
In the case of Gandy, I'm sure the plaintiffs' attorney no doubt fought zealously for her clients, but the bulk of the law was arrayed against her, and the verdict was the one I would have hoped the jury would reach. We trust in juries--composed of ordinary people of sound mind, entirely capable of reaching determinations based on presented evidence and arguments--to ultimately decide which party was right. That's one of the fundaments of the system, and we trust it to do things right. No matter how the law is portrayed in the media, slick hustler attorneys rarely slip weak cases past 12 competent adults.
Texas law protects property owners in the majority of cases involving injured trespassers. If you get a wild hair and decide to jump a fence or two during some urban exploration, please be aware that adults are not afforded a great deal of leeway if they land on something sharp, or find themselves in the presence of a hungry Rottweiler.
So caveat bibitor.