News: Ezekiel Elliott's Lawyer: Alleged Dog Attack Victim Was Trespassing on Property

cern said:

Was OJ believable. Or his key witnesses kato kaelin or rosa lopez? Was it a fair and impartial jury. The only justice was that the juice stiffed all his attorneys and didn't pay them.

Click to expand...

Sevenup3000 said:

I am a licensed Texas attorney (although I practice bankruptcy law). Where are you getting this information?

In the first 2 weeks of Tort we learn that intent and motives are two separate considerations. Especially when it comes to the tort of trespassing. It does not matter one bit what this lady's motives were.

Under Texas Penal Code Section 30.05, criminal trespass includes the following elements: the person enters or remains on or in property of another; without effective consent and the person; and. when the person had notice that the entry was forbidden or received notice to depart but failed to do so.

Texas law recognizes a cause of action for trespass to real property. Trespass to real property is an unauthorized entry upon the land of another, and may occur when one enters, or causes something to enter, another's property.

No where in those definition does it talk about motive, i.e., she entered the property to commit a crime. The law doesn't care what your motive is...only your intent. For example, if you are lost, and you enter my property (driveway) with your car to do a u-turn, are you guilty of trespassing? Under most jurisdiction (including Texas), yes you are! It does't matter WHY you entered...only that the entry upon my property was unauthorized and that you intended to enter upon my property.

Your son kicks a ball into my yard...He goes to retrieve it without my permission. That also is trespassing. Your son (unless he was pushed) intended to enter onto my land without authorization.

So you keep saying "unless she was there to commit a crime." But that is irrelevant (and would be in any jurisdiction that I know).

Did she entered into Zeke's property, and if so, was the entry authorized? She clearly INTENTIONALLY entered...so that is one element...the only question, which Zeke's attorney clearly asserts it was not, was her intentional entry authorized by the Owner?

Click to expand...

cern said:

I also have a degree in law (SMU 1985) and could easily argue that neither motive or intent apply in this case . She had no motive since she was sent to do a job. Intent doesn't apply since there no reason for her to go there other than the fact her employer sent her to do a job for which his company had been hired to perform. She was but an agent of her employer. Nothing she did was of her own volition. Shades of grey. Who'da thunk it.

Click to expand...

Sevenup3000 said:

I am a licensed Texas attorney (although I practice bankruptcy law). Where are you getting this information?

In the first 2 weeks of Tort we learn that intent and motives are two separate considerations. Especially when it comes to the tort of trespassing. It does not matter one bit what this lady's motives were.

Under Texas Penal Code Section 30.05, criminal trespass includes the following elements: the person enters or remains on or in property of another; without effective consent and the person; and. when the person had notice that the entry was forbidden or received notice to depart but failed to do so.

Texas law recognizes a cause of action for trespass to real property. Trespass to real property is an unauthorized entry upon the land of another, and may occur when one enters, or causes something to enter, another's property.

No where in those definition does it talk about motive, i.e., she entered the property to commit a crime. The law doesn't care what your motive is...only your intent. For example, if you are lost, and you enter my property (driveway) with your car to do a u-turn, are you guilty of trespassing? Under most jurisdiction (including Texas), yes you are! It does't matter WHY you entered...only that the entry upon my property was unauthorized and that you intended to enter upon my property.

Your son kicks a ball into my yard...He goes to retrieve it without my permission. That also is trespassing. Your son (unless he was pushed) intended to enter onto my land without authorization.

So you keep saying "unless she was there to commit a crime." But that is irrelevant (and would be in any jurisdiction that I know).

Did she entered into Zeke's property, and if so, was the entry authorized? She clearly INTENTIONALLY entered...so that is one element...the only question, which Zeke's attorney clearly asserts it was not, was her intentional entry authorized by the Owner?

Click to expand...

kskboys said:

I'm no expert, but it appears to me that what Z's lawyer is saying is nothing but the first volley.

Click to expand...

Reality said:

Actually, I have dealt with this situation before in two different scenarios.

If she was a kid wondering into the yard for a ball and the dogs bit her, she would be at fault and considered trespassing.

If she was not an employee and went into the yard and the dogs bit her, she would be at fault for trespassing.

However, she was an employee who had access and unless she was there to commit a crime or broke in, it will be nearly impossible to prove trespassing.

The reason I say "unless she was there to commit a crime or broke in" is not a blanket statement for ALL people, but for her, an employee, specifically because that would negate her authorization as an employee.

If an employee goes to their office at midnight and has a key, that will not be considered trespassing unless they committed a crime while doing so, though the employer could fire them for doing so if it violated procedures. However, if they went to the office, broke in and then caught up on some work, that would be trespassing because they committed a crime in gaining entry even though they were there to actually work.

Not following procedures is grounds for termination, but not grounds for relief of liability.

Now, if she had been told not to return to the property and did so, then yes, that would be trespassing. However, simply saying, "Yes, she was allowed but only when the moon is full on a Tuesday" is not enough to remove liability from an employer. If that were the case, then every employer could simply say, "I told them not to come in the day they were hurt so they were trespassing" on every work-related injury.

Click to expand...

cern said:

No doubt. I see a settlement for zeke in his future. This isn't the kind of publicity he needs.

Click to expand...

Sevenup3000 said:

Furthermore, which is why Zeke's attorney is adamant that she was a trespasser, the duty one owes to an intruder is drastically different:

Duty Owed Trespassers


A landowner has no duty to keep premises in a safe condition for the benefit of trespassers. An owner does not possess any duty to a trespasser under the traditional common law view except to abstain from willful or wanton misconduct or entrapment.

Willful misconduct is that which is performed with the actor’s actual knowledge or with what the law deems the equivalent of actual knowledge of the peril to be apprehended, coupled with a conscious failure to avert injury. Whereas, a wanton act is performed with reckless indifference to its potentially injurious consequences[iii]. This rule of limited liability to trespassers permits a person to use his/her own land as s/he likes without the burden of protecting those who come there without permission or right.

Trespassers may be classified either as discovered or undiscovered. If a person is an undiscovered trespasser, then the landowner has a duty to refrain from willful or wanton misconduct. Whereas, if a landowner knows that trespassers have been on his/her land, then these persons are discovered trespassers to whom the landowner owes the duty of ordinary care to warn of danger[iv].

A landowner will owe only a duty of ordinary care when s/he knows that trespassers constantly intrude upon a limited area of the property where the owner either carries on a dangerous activity or has maintained an artificial condition that s/he has reason to know is dangerous and that the danger will not be discovered or appreciated by the intruders.

It is to be noted that a landowner does not have any obligation to keep his/her premises in a non hazardous state. His/her only duty to a trespasser is to abstain from acts willfully injurious[vi].

Click to expand...

cern said:

Other than zeke's attorney making a pretrial comment, there is no evidence she was trespassing. Such a statement will not scare off her attorney. In fact, if there is any evidence to the contrary, it could blow up in his face.

Click to expand...

Shinaoi said:

Being zekes lawyer must be a lucrative deal as often as he needs one.

Click to expand...

kskboys said:

I wish I knew more about this case. I do know the right thing would be to pay her medical bills, but I really can't decide which side to be on, as I just don't know enough.

Click to expand...

Reality said:

Unless she was there to commit a crime or broke in, no court is going to rule she trespassed while she was employed by the property's owner.

The employer can give specific instructions and can fire the employee if those instructions are not followed, but they cannot use trespassing as a defense unless a crime was committed or was in the act of being committed.

Click to expand...

1. 1.
   enter the owner's land or property without permission.

kskboys said:

It really sounds like a bad defense to me.

Click to expand...

cern said:

Her side will produce phone records as to whether or not calls were made in advance of their showing up. Possibly text messages showing the same. Did zeke continue to use that same service after the incident occurred. Did he change service companies? If so, did he have it put in writing they call prior to coming out, especially after the dog incident. If not, wouldn't look good for zeke. Shades of grey.

Click to expand...

Reality said:

The moment the lawyer said, "ignored her employer's policy", it was over.

Unless she was there to commit an intentional crime or she broke in, the fact he employed her will negate any claim of trespassing unless she had been formally terminated beforehand.

Click to expand...

PUSHfold said:

Uh...being on someone's property without permission especially if its stated he must be notified in advance is trespassing...You're not supposed to be there...Here's the exact definition of trespassing you tell me what it says.
tres·pass
/ˈtrespəs,ˈtresˌpas/
verb
gerund or present participle: trespassing

1. 1.
   enter the owner's land or property without permission.

I'm no Zeke apologist and I doubt what his lawyer is saying but IF ITS true I don't see how he's liable...if someone has big vicious dogs no wonder they need to be notified in advance that's your own damn fault not Zekes. I'll also say I don't think people should own a bunch of vicious dogs that'll rip someones face off as well but to each his own.

Click to expand...