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Motion for Summary Judgment Gets Pooped Upon

I’ve read some crappy motions over the years, some of which opposing counsel might even attribute to me, but I don’t think I’ve ever written about poop and motions.

In Beebe v. Wonderful Pistachio & Almonds LLC, a summary judgment motion filed by a project owner sued by a construction worker for personal injuries caused by bird poop, which in turn caused a nasty fungal infection which spread to his brain, resulted in a not-so-wonderful ending for Wonderful.

The Beebe Case

Dale Beebe, an electrical foreman for subcontractor Braaten Electric, Inc., sued general contractor Potential Design, Inc. and project owner Wonderful Pistachio & Almonds, LLC for personal injuries he allegedly sustained while working on two Wonderful construction projects “plagued,” according to the Court, “by flocks of migrating swallows that roosted, over several years, under the roof of an open, barn-like structure.”

Before your mind begins wandering the Alfred Hitchcock’s The Birds, Mr. Beebe wasn’t attacked by these flocks of migrating swallows, but rather, was impacted by their “sizable accumulations of bird feces.”

According to Mr. Beebe’s complaint, “Defendants, and each of them, engaged in removal, remediation and/or clean-up of toxic substance(s)” “believed to have been bird feces” while “performing hydro-blasting.” The “hydro-blasting,” according to Mr. Beebe’s complaint, “caused spores of the toxic substance(s) to become airborne . . . exposing Plaintiff to the toxic substance(s),” caused a lung infection which eventually spread to his brain “such that Plaintiff required surgical intervention.”

After the complaint was filed, Wonderful filed a motion for summary judgment, including declarations from two experts, arguing that Mr. Beebe had not established that “Wonderful’s ‘conduct proximately caused his alleged injuries.'” Mr. Beebe opposed the motion and included declarations from his own experts.

According to Wonderful’s experts, Mr. Beebe could not show that his fungal infection was caused by his work at Wonderful’s projects because: (1) he had not seen sampling data indicating presence of the fungus at the project location; (2) After working at Wonderful’s projects, Mr. Beebe worked at 40 different project sites, in 13 different counties in California, and that the source of the fungus could not be determined; (3) no other person who worked at Wonderful’s projects complained of a fungus infection; and (4) the onset of symptoms by Mr. Beebe, 14 months after he worked at Wonderful’s projects, was not consistent with the incubation period for the fungus which was 3 to 17 days.

According to Mr. Beebe’s experts: (1) the fungus impacting Mr. Beebe is wide-spread in the San Joaquin area where Wonderful’s projects were located and that more than 60% of residents in the San Joaquin area could have some form of the infection; (2) the fungus impacting Mr. Beebe is under-diagnosed with 90% of infections occurring without symptoms; and (3) the fungus impacting Mr. Beebe is caused by prolonged exposure and Mr. Beebe worked at Wonderful’s projects continuously for close to two years.

The trial court ultimately agreed with Wonderful and found that there were no “triable issues of fact on the issue of causation.” Mr. Beebe appealed.

The Appeal

On appeal, the 5th District Court of Appeal explained that:

Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) This court reviews de novo the trial court’s decision to grant summary judgment and we are not bound by the trial court’s stated reasons or rationales. In reviewing a motion for summary judgment, we accept as undisputed fact only those portions of the moving party’s evidence that are uncontradicted by the opposing party. In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn therefrom are accepted as true.

Further, as to causation, the Court of Appeal explained:

The “substantial factor” test for causation is appropriate in all tort actions. Thus, a force which plays only an “`”infinitesimal”‘” or “`”theoretical”‘” part in bringing about the injury is not a substantial factor, but a “`”very minor force that does cause harm is a substantial factor.”‘” Further, “[c]ausation is a question of reasonable probability; `legal cause’ need not be proved with certainty, but mere possibility is insufficient to establish a prima facie case. Thus, the issue is whether it is more likely than not that plaintiff’s injury was a result of defendant’s act or omission.”

Here, held the Court of Appeal, unlike cases where “there was no circumstantial evidence from which the jury could reasonably infer [causation],” here there was sufficient circumstantial evidence to establish a reasonable inference of causation:

  1. The Wonderful projects were on a migratory route for flocks of swallows;

  2. Hundreds of swallows had nested in the pole barn years;

  3. The presence of bird feces was so prevalent, with spots having layers of feces an inch or two thick, that efforts were made to dry sweep or use leaf blowers to clear the feces from the floor of the pole barn;

  4. The feces were not disposed of, but rather allowed to accumulate on the surrounding dirt around the pole barn, which allowed the fungus to grow;

  5. Mr. Beebe lived in an RV near the pole barn during his nearly two years of work on Wonderful’s projects, even taking meals near the pole barn on a regular basis;

  6. The pool of employees working at or near the pole barn, which ranged from 12 to 45 employees was small, and because most people exposed to the fungus are asymptomatic it was not surprising that other workers were not diagnosed with the fungus; and

  7. While Mr. Beebe was not diagnosed with the fungus until 14 months after he worked at Wonderful’s projects, many patients suffering from the fungus go undiagnosed for years.


In terms of lessons to be learned here, I don’t think there is much from a construction law standpoint, other than that weird stuff can happen on construction projects, it’s rare to read about a case involving bird poop, and that when it comes to causation you don’t need to show causation with certainty but can do so circumstantially.

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