By Terrence J. Lavin

Reading slip opinions is part and parcel of the practicing attorney's daily grind.

Back in my legal youth, I had the assignment of closely following the advance sheets in search of instructive opinions in the personal injury arena, so the senior lawyers could spend their time more wisely in seemingly complicated matters like depositions and trials.

At the afternoon call, I was regularly asked to relate the facts and holdings of some of the significant cases that were handed down.

A more intellectual type may have presented only the opinions of true legal significance. I, on the other hand, was ever on the lookout for an offbeat case that would provide some levity in what was an otherwise dry-as-melba-toast enterprise.

These cases typically found their way into speeches for the partners' presentations at bar association seminars.

I recall fondly a shooting accident case in which the defendant mistook his pal for a turkey, even though he was dressed up in hunter paraphernalia.

The defendant's lawyer pleaded contributory fault. I would have pleaded insanity – that is, until Dick Cheney filled his hunting buddy full of lead, thus lending an air of legitimacy to the defense.

There is nothing better than a silly fact pattern to make the day of an advance-sheet warrior. Perhaps it is the observation of an aging lawyer, but I have to say that there are precious few wacky cases out there in the legal hustings.

I could probably find a few in the criminal arena, but it's hard to wade through all the perversions when you're just in search of a little tragicomedy.

Fortunately for all of us, we have a budding legal humorist in the 3rd District Appellate Court. Justice Daniel Schmidt, a recent addition to the court, was given the assignment of dispensing justice in the slip-and-fall case of Pageloff v. Gaumer and Ruffit Park (No. 3-04-0533, April 19, 2006).

This ordinarily wouldn't provide much of an opportunity for wit, or jurisprudence for that matter, but Justice Schmidt was smart enough to recognize that this case was different.

The offending “defect” that perniciously caused such a dangerous condition for the never-alert plaintiff was a nut. That's right, a real nut.

Mrs. Pageloff and her husband went to a campground in beautiful Whiteside County. When their normal campsite was occupied, they were fortunate enough to get another spot, a cozy nook in the park underneath the canopy of walnut trees.

Unfortunately for the Pageloffs, this was Labor Day weekend and the walnuts were falling – on their heads, on their camper and, of course, all over the ground. On their third day, one of these rascals somehow got under Mrs. Pageloff's foot and she slipped and fell, injuring her ankle.

In a normal society, this would be an occasion for nothing more than a “thinking of you” Hallmark card, but Mrs. Pageloff got herself a lawyer.

So did Mr. Pageloff, claiming loss of consortium presumably attributable to the marriage-wrecking ankle break, but Justice Schmidt gave him a pass in the opinion.

The couple filed their case in Whiteside County, where Judge Timothy Slavin sent them packing with a summary judgment for the defense.

Most people would have moved on with their lives, but persistence must be a Pageloff family trait. They took the case up to the Appellate Court, where the ironic Justice Schmidt lay in wait.

In drier, less capable hands, this fact pattern might lend itself only to a discussion of the frivolous nature of the lawsuit, but the justice instead unleashed his pent-up wit, along with some boilerplate premises liability law. Here's his take on the facts:

“Walnut trees were adjacent to this campsite, and for the entire weekend walnuts, as they are prone to do in late summer, fell off the trees onto the site. What might have been a baker's dream, turned into plaintiffs' nightmare: walnuts everywhere.

“During her deposition, Kelly [Mrs.] stated that she and Dale [Mr.] had been cleaning the fallen walnuts up all weekend and that the walnuts ‘were everywhere' and ‘everywhere you tried to walk.' Falling walnuts even damaged plaintiffs' camper.

“Notwithstanding the unrelenting barrage of falling nuts, plaintiffs remained on the campsite. The Pageloffs brought a rake with them and used it to clean walnuts from the campsite during the entire weekend.

“Three days after their arrival, while cleaning up the campsite to go home, Kelly stepped on a walnut and fell, suffering a rather severe injury to her left ankle. She did not know how long the offending nut had been on the ground.”

Justice Schmidt then focused on the nitty-gritty details of his day job, elucidated the standard of review and laid out the legal duty analysis.

Journeyman judging, for the most part, but he slipped in a few pearls while talking about whether a landowner has a duty to warn of walnuts that fall from trees onto the heads and vehicles of campers, only to land on the ground on which they inevitably walk.

This brought the justice into the familiar but mind-numbingly boring legal backwaters of the duty to warn of open and obvious conditions.

The defendants sought refuge in the “natural accumulation” cases, which hold that a landowner is not liable for injuries cause by a natural accumulation of ice or snow.

They found a sympathetic judicial ear in Justice Schmidt, who felt that guarding against injuries from a fallen nut would be “beyond onerous” because, “[p]ractically speaking, you could not have walnut trees on campgrounds. Like the snow from the sky in winter, nuts fall from walnut trees in the late summer.”

It ain't poetry, but this is the law we're talking about, so it sounds like Kipling to me. He was also bluntly humorous when holding that the defendants had no duty to remove trees from their campground:

“Of course, defendants could cut down all of the nut-bearing trees and pave their property. That might make for a safer campground. Most likely one devoid of campers, too.”

Turning litigious piffle into readable legal prose is no small task. While reading Justice Schmidt's pleasant and humorous slam of this cipher's suit, I kept recalling a turkey-shooting case from my days as a neophyte lawyer.

I don't see the actual hunters, but rather the corpulently comic Bobby Baccala from the “Sopranos,” trudging through the New Jersey pine barrens in hunter's regalia, in search of Christopher and that guy with the wacky hairdo.

What's his name again? Paulie Walnuts. Sorry, I couldn't restrain myself.

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ISBA past president Terrence Lavin, a -plaintiff personal injury attorney, is principal of the Lavin Law Offices, Chicago.