Lowe's in Fairview Heights

Gordon Broom

A Centreville woman who sued Lowe's Home Center over a wild bird attack and resulting loss of cognitive skills will have to rethink her legal strategy.

On Tuesday, U.S. District Judge William Stiehl granted Lowe's motion for summary judgment.

"Even assuming that birds could reasonably be considered dangerous, a reasonable plaintiff would have either noticed the birds, or would have realized that in any outdoor area full of plant life, contact with wild birds is possible," Stiehl wrote in his Jan. 3 order.

Rhonda Nichols filed suit in Madison County Circuit Court April 12, 2005, claiming the attack caused injuries to her head, brain, neck, including herniation of her C5-C6 and C6-C7, loss of neurological functions, cognitive skills as well as injuries to her muscles, bones, nerves, and ligaments.

The case was removed to federal court a month after it was filed.

The incident took place at the Fairview Heights Home Center on
April 15, 2003.

Nichols claimed that the wild birds created a dangerous condition on the property and that Lowe's failed to exercise ordinary care to ensure that the premises were reasonably safe and failed to prevent the birds from entering the garden center.

In granting Lowe's motion for summary judgment, Stiehl stated, "Illinois law holds that persons or entities who own or control land are not required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious.

"The Court finds as a matter of law that plaintiff's injury was not reasonably foreseeable. Birds are not commonly thought to pose a danger to people.

"Defendant had no notice or expectation that one of the birds could potentially attack a customer. If the Court were to impose such a duty on defendant, the magnitude of the burden on defendant, and all gardening centers, nurseries, and other outdoor retail facilities, would be tremendous.

"Retailers of plants and flowers would risk liability resulting from the presence of animals and insects that may feed on or be attracted to such plant life."

"...The defendant made no effort to conceal the birds from the plaintiff. Plaintiff may argue that she could not have reasonably expected to be attacked by the birds because birds are not considered dangerous. However, to make that argument is to admit that her injury was not reasonably foreseeable."

Nichols was represented by Zane Cagle of St. Louis.

Lowe's attorney, Gordon Broom of Edwardsville, removed the case to federal court on May 25, 2005, claiming the civil suit was against parties of different states. Since Nichols was seeking damages in excess of $75,000, jurisdiction was proper in federal court, Broom argued.

On July 20, 2005, Stiehl denied Nichols' motion to remand the case back to Madison County. In his order denying the motion Stiehl wrote, "Plaintiff, in her motion to remand, does not appear to dispute the amount in controversy nor the complete diversity of the parties.

"Rather, she rests only on her assertion that jurisdiction and venue were proper in the state court. Clearly, that argument is insufficient to warrant a remand of this case."

Cagle then amended Nichols complaint on Aug. 16, 2005, to add, "Lowe's Home Center Inc., controlled the said birds in that they provided food from plants, berries, and seeds in said garden area in or about the previously mentioned premises."

She also removed the strict liability count in her original complaint and added a count alleging that Lowe's violated the Illinois Animal Control Act.

After an unsuccessful attempt to dismiss the case, Broom filed a motion for summary judgment on Oct. 26, 2005.

In the motion Broom wrote, "Plaintiff does not allege that Lowe's provided plants, berries and seeds for the purpose of feeding wild birds. Rather, plaintiff's vague allegations appear to merely set forth that wild birds fed and drank water from plants, berries, and seeds offered as merchandise in Lowe's gardening area.

Broom also stated that if Nichols established Lowe's was the harborer of the wild birds, landowners would be required to warn and protect guests of the presence of squirrels and birds or any other animal attracted to plants or flowers on their property.

Broom also stated that Lowe's did not owe a duty to warn Nichols because it was not foreseeable that a wild bird would strike her in the back of the head.

"No customer or employee at the Fairview Heights store has ever been attacked or injured by a wild bird prior to the plaintiff's allegations," Broom wrote.

In Nichols response to Lowe's motion for summary judgment Cagle admitted that Lowe's set forth the proper standard for summary judgment but denied that said standard had been satisfied.

"Furthermore, summary judgment should only be granted when it has been shown 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," Cagle writes.

He also claimed that only when the moving party's right to judgment is free and clear from doubt should summary judgment be granted.