The Babysitter Factor

I’m going to start the new year with a story from my early years as a trial lawyer. It’s one of my favorites because, although the facts are quite unusual, the story is instructive of the need to keep an open mind about absolutely everything when looking for opportunities to resolve a case.

About 20 years ago, I was retained by a liability insurance carrier to defend a nuisance claim brought against a local manufacturing company located in a small "mill town" in New Hampshire. The company had been around since the early 19th Century, and had been owned by the same family for about 75 years. For much of its existence, it had been the dominant player in the town’s economy. In fact, it was in operation before there was a town. For the last few years prior to the lawsuit, the company had been run by its dynamic, twenty-something president, a scion of the owning family who had undertaken a modernization program designed to keep the company competitive well into the 21st Century.

For years prior to the lawsuit, a large vacant lot owned by the company had served as a buffer between the factory and a small residential neighborhood. However, the company had recently built a large addition that completely filled the lot and extended right up to the street across from two small houses. Although the expansion did not run afoul of any zoning requirements, the owners of the two houses filed an action for injunction and money damages, claiming that the expanded factory constituted a legal nuisance.

One of the plaintiffs was a former employee of the company who had left involuntarily, and who arguably had an axe to grind. The second plaintiff was an elderly woman who lived alone next door to the first. The primary claim of nuisance was that the machinery in the new facility caused excessive and intolerable vibration and noise. There were other less specific claims, but the vibration issue kept the "lesser" claims off of everyone’s radar screen. The former employee and his attorney took the lead in discovery; the elderly neighbor remained rather passive.

The main issue of concern to the company was the request for an injunction, which, if imposed, would not have been covered by its insurance policy. For that reason, the company’s own corporate attorney defended along with me and took an active role in the trial preparation.

Early in the discovery phase, we arranged to visit the plaintiffs’ properties on a day when all the machinery in the new building was running full blast. As our client’s people had predicted, we were able to stand directly across from the factory on the plaintiffs’ front porches and could, almost literally, hear the grass grow. There was no vibration to speak of, and noise was minimal. We felt confident that the presiding judge would throw the case out of court.

The company president turned the case preparation over to the attorneys and his risk management people, but we were able to prevail upon him to represent the company in person at trial. The first witness called by the plaintiffs was the elderly woman. As she testified, it became apparent that the minor noise and vibration of the machinery didn’t concern her nearly as much as the delivery trucks that tended to arrive and leave in the early hours of the morning. After listening to her testimony for a few minutes, the young president leaned over to us and whispered: "She used to be our babysitter when we were kids. We ought to be able to do better for her!" We asked the judge for a recess and negotiated a settlement within the next hour or so.