THE FALL "the plaintiff caught the toe of her shoe in a moss sealed gap between a sidewalk..."

APPLICATION OF ROBINSON TO STATIC CONDITION CASES

While the decision in Robinson v. Kroger Co. is being applied in static condition/defect cases, its effect may not be quite as great as where a foreign substance is involved. One example is the decision in Tanner v. Lorango, 232 Ga. App. 599, 502 S.E.2d 599 (1998). Here the plaintiff APPLICATION OF ROBINSON TO STATIC CONDITION CASES

While the decision in Robinson v. Kroger Co. is being applied in static condition/defect cases, its effect may not be quite as great as where a foreign substance is involved. One example is the decision in Tanner v. Lorango, 232 Ga. App. 599, 502 S.E.2d 599 (1998). Here the plaintiff caught the toe of her shoe in a moss sealed gap between a sidewalk which served as the entrance to a store in the store's parking lot. Photographs showed that although green moss growing in the separation concealed the depth of the gap between the light colored cement sidewalk and the black asphalt parking lot, the gap itself was plainly visible. "Occupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities in trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel. It is common knowledge that small cracks, holes, and uneven spots often develop in pavement, and it has been held that where there is nothing to obstruct or interfere with one's ability to see such a static defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved."

- See more at: http://corporate.findlaw.com/litigation-disputes/premises-liability-slip-and-fall.html#sthash.iyGT4CLi.dpuf which served as the entrance to a store in the store's parking lot. Photographs showed that although green moss growing in the separation concealed the depth of the gap between the light colored cement sidewalk and the black asphalt parking lot, the gap itself was plainly visible. "Occupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities in trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel. It is common knowledge that small cracks, holes, and uneven spots often develop in pavement, and it has been held that where there is nothing to obstruct or interfere with one's ability to see such a static defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved."

- See more at: http://corporate.findlaw.com/litigation-disputes/premises-liability-slip-and-fall.html#sthash.iyGT4CLi.dpuf

When "diversity" hides real diversity: Oscars 2017

Watch for three of the four acting Oscars this year to go to African-American actors.  I promise you that there won't be a backlash ("too much diversity"), even if blacks are 12% of the population and whites 72%.   I just wish "diversity" would include other minorities.  By the same token, no one has ever complained about the NBA, NFL, other professional sports, or pop music, being "not diverse enough."

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Special Needs Trust IV: A case study - Buying furniture

Proposal to trustee for purchase of furniture



I would like to buy some new furniture.

The reason I mentioned this is that the last time we spoke in person, as I recall, that I use up my inheritance by spending it, a large part of it at least, on furniture.

And am trying to an idea of what furniture you think I should have (your tastes, preferences, wants...) so I can go out shopping with an idea of what you have in mind to shop and look for.

With your previous experience in retailing, I know you would like to share///

Would my sending you photographs of my apartment help you to choose and decide what [kinds of furniture] you think I should have?

(I don't want to waste time and effort looking at furniture you would hesitate about approving disbursements for).

What kind of furniture do you like?     (What kind of furniture would you approve ?)

What material  (fabric, etc.) do you prefer?     What material would you approve of?     

What brands do you want me to do?    (What brands do/would you you approve of?)

What colors do you like?     Any strong preferences or dislikes?

What styles would you approve of?   What styles are you neutral towards?  Do you like solid pastel colors ?  Would they more likely earn your approval and support?

Do you like wingtip chairs?   Or do you think they're too old-fashioned?   How many do you want me to have?    (Is two chairs "excessive")?

Would you be happy (or dissatisfied) with furniture bought from Sears?   St. Vincent de Paul?   Nordstrom?  Ethan Allen?  J.C. Penney?  

For local retail stores, would you please make your preferences known from the list below:

https://www.yelp.com/search?find_desc=Furniture+Stores&find_loc=Seattle%2C+WA&ns=1

Do you wish to limit it to $, $$, $$$, or $$$$, or to **** and above?

Best Furniture Stores in Seattle, WA - yelp.com www.yelp.com Reviews on Furniture stores in Seattle, WA - Bedrooms & More, McKinnon Furniture, Kasala Outlet, ten22home, Used Furniture, Kasala, Digs, Reclaim Decor, Retrofit Home ...

"It's been so much fun shopping with you."

Would you like photographs of the furniture?   Would you like me to submit a list of furniture I would to purchase so that you can approve of the ones you really like and think that I should enjoy and that you think would  and should enhance my life, and so that you can decide how much you would like me to (I should) spend and so that you can decide whether or not you think the price is reasonable?

What would you like to have as your budget for my chair?

Would you approve of my buying the furniture this year or do want to wait another 3-4 years?

Do you want to fly out to Seattle so that we can look around at the stores you approve of , and, from the list pieces of furniture I select, you choose and make a final choice based on what you think you want me to have in my apartment and what pleases or really "grabs" you?   Or at least veto the ones you don't like on my list and let me make a choice from the remaining ones that you haven't crossed off the list?

Or do you want me to (and think I should) not buy any furniture (although you might "et me buy a piece of furniture depending on what it is) all together?

Is there else you think I should want something that I haven't mentioned?

(Do you want me to buy clothing?  Do you think I should buy shoes?  Should I get them at the Nordstrom Rack?   (Would you approve and say to me "That is a good use of  trust funds"?)

Maybe you're inclined to have me not buy anything/  Or is it your wish that I spend as little as possible?   Or are you undecided, "depending on the circumstances"?

     

Would you buy likely to approve of me buying plane tickets for both us to fly to London for a week so you can help me pick a wardrobe that we both like?    If I said "no," would that affect whether or not you approve my going to China in the fall?     Or do you think I need (= should want) you to accompany you?

And would come over sometime and rearrange my apartment for me so that it looks the way you think it should and the way you'd like it look?

Your wish is my command.

Relax, I am putting your needs (and wants) first.

Thank you, in advance, for this clarification.

Special Needs Trusts III: Siblings know each other

"Beneficiary, who has known trustee his entire life, asserts that she strongly is of the belief that the rationalization--emotional reasonin--used by trustee in administering the SNT is the following:  "I don't know if I should let her buy.  I don't want her to buy good X or service Y.   I don't like the item. I don't think he should she have X/Y.   Ergo, she should not buy it (at least not with trust funds).  

"It is excessive.  The price is too expensive.   She already has items identical or similar to X/Y.   Since X/Y is not necessary, so why am I obligated to approve X/Y...especially when there are so many other things she could buy instead?       

"I don't think she would benefit from it.    It would not enhance her life.  And I don't think she would enjoy it, even though she says she would.  I think I know her pretty well, being her sister.  

"I think I know what's good and what's not good for her.. Does she really know what's good for her?   Not necessarily.   

"God, I don't know what she's up to.  Haven't I let her buy pretty much whatever she has wanted?   If you think this is about my fear of losing control of things, you're wrong.  I'm doing this because I am looking out for her, as I always have."

Special Needs Trust II: Medusa, Marsha, Mother and T

The rationale:  The reason why the trustee will not approve a disbursement to cover the particular good (service) was that simply "she didn't the beneficiary to have it.  I don't think she should have it.  I don't like it.  I don't think it's necessary."

T for M, and M for T

The beneficiary ("B") was acutely sensitive to every mood of the Trustee ("T"), knowing deep inside, because they had known each other since childhood, that controlled his trust, that the Trustee was using her to enhance her own sense of herself as competent, powerful, and confident, vis-a-vis B who T convinced herself to see as congenitally weak, needing T to decide for B what she really needed, enjoyed, and benefited from, as if B were a vegetable who could not know what she enjoyed, who could say, "I prefer salmon to trout," to which T would say, "Are you sure that you wouldn't enjoy trout more?  You know, salmon has a weird taste to it..." and so badger B that in the end she relented and said, "O.K., I'll get the trout," relieved to have ended the stand-off.

If however B were to stand her ground, this would mean usually for B to explode and in same cases even call T the vilest of epithets ("C---" on a rare occasion), which T would, even if hurt inside about the abuse, use to say, "There she goes again, going off the deep end" and in T's internal logic, "She really is a basket-case.  She could use some help.  She should not really be allowed to make her decisions.  Mom and Dad told me I should take care of B.  I owe this to them to take care of 'B' and since I know better than B [how the world works, etc.], I am totally justified in doing what I do.  No need to veer off course, I'm doing everything right, B is just being difficult.  But reason [my reasons] will prevail."

"I wear the pants in this relationship" could have been T's motto, and the benefactor recalled vividly a dream in which he saw his own Mother embrace her, a penis pressing against her body, a penis in a woman.  The trustee had become her own Mother and vice versa.

When B realized that T was obstructing his access to it, and exacting psychological damage ('pressing his buttons" in the popular jargon) just as her own mother had done by figuratively "spanking her" (now scolding B for what the trustee said "she have should remembered, I already TOLD you this!"), she was now trapped for the rest of her lifetime in suffering and conflict.

Everything could be used against the beneficiary, the most intimate details, by T to maintain or consolidate control, as well as B.'s
deepest fears

To the point that B pleaded with the trustee if she could renounce the trust, to which the answer was a terse "Impossible, you cannot."

B would never be free of the trustee unless she, like Perseus, were able to slay this Medusa - Mother - Trustee, or unless she were able to persuade this modern-day Medusa to look in a mirror, in which she would be turned to stone as she had turned others into stone.

That fierce, implacable gaze, those eyes of stone...



To be continued

---

What did I do wrong?

What will set him/her over the top?

Special Needs Trust I: Dear SNT Trustee

Dear Trustee:

I am looking at a work of art that is priced over $7,000, considerably over my credit card limit.


How would you like to be consulted?   by Skype?  email?  phone?


What are your criteria for approving purchases of art work?


(1) Whether you like it


(2) Whether you absolutely love it.  You give full approval to the art work you love.  All I do is present six pieces of art work and then you chose which one to approve.


(3) Whether we both like it



(4) Flip a coin, depending on whether you're in a good or bad mood


(5) Compare it to any of the pieces of furniture you bought for $55,000 when you received your inheritance


(6) Whether I like


(7) Disapproval.  You disapprove of buying artwork, in principle, as you would like me to buy poster instead.  Genuine art work in your view is not necessary for ne,


(8) You need to be flown to the city where the art work is located to see for yourself, at the expense of the trust, before you can give trustee approval.  "It REALLY has to knock my socks off."  And then you require that I open my apartment up and so that you can visit and make sure that there is enough room and so you can "help" me decide where to hang it."   You don't really like to micro-manage as you're a very busy person.  I should be grateful that I have a sister who will go to such lengths to do these things like this "for" him, even when not asked to!   You are upset that the benefactor is not grateful for your "help."  Such ingratitude leads to the next months' balance paid 10 days late.


(9) Whether it would look good in your living room if I die before you do.


(10) Whether your boyfriend likes it


(11) Whether it has any nudity in it or not.  You disapprove of nudity.


(12) Whether it is contemporary (abstract) art.   You don't like contemporary art.   You prefer 19th century.  You would be happy with my buying an oil painting, smallish.  You wouldn't be comfortable with anything really dark or that had religious themes.  They'd be bad for me.  And dark oils are so gloomy.  You like miniature portraits with slabs of pink in them.  You could get really excited if I bought something like that.  You don't want to influence my disbursements but, on the other hand, legally you don't have to approve of $20 worth of U.S. postage stamps, right?  


Thank you for your wisdom and kind attention,

(name withheld for reasons of privacy)

Thought II

Why do you write?

I write to be free.

(Why do you meditate?

I write to be free.)

Thought

Why do you write?

I write to stay alive.

Special Needs Trusts in America: There s/he goes again, off the deep end

Henry Matisse

SNT Trustee to herself: 

"I think I know what he should or would enjoy.  In any case the real point is thatI would like him (her) to buy this.  That is something I could approve of.  The things he proposes buying that he says he enjoys are not things I approve of or like a lot.  I dislike them.  And I don't approve of men or women with nose-rings.  They're so ugly and probably carry germs.  I don't know if I should let him (her) buy any.

I'm tired of hearing the benefactor that he s/he doesn't get what s/he wants from the SNT.  I will tell him (her) that I will resign if s/he continues to complain, and let's how s/he fares then.  How dare s/he complain when I'm not asking for a penny.  It's me that is supposed to make the decisions.  Who does s/he think s/he is, anyway?  I don't have to let him (her) buy $20 worth of postage stamps."

 

A SNT does require that the trustee authorize (approve) of all disbursements from the SNT. But there is some confusion about this word approval in the context of the SNT means.

Approval of a disbursement is not the same thing as approval based on what the trustee thinks the beneficiary should buy.

“I cannot approve of this disbursement because I don’t think you should want [even if the beneficiary states that he would enjoy or benefit from the item] this item“ is a violation of the intent of the SNT.

The trustee's position is to not decide whether the beneficiary should or should not enjoy or benefit from a good service i.e., to substitute his or her desires for those of the beneficiary unless it can proven that the beneficiary is incapable of deciding what he enjoys or what enhances his life.

because that would violate the intent of the SNT which is to benefit, enhance the life or enjoyment of life of the beneficiary.  

This also why items bought using the beneficiary's credit card cannot be used to benefit a third party, including the benefactor friends or associates or the trustee himself or herself..

If the trustee were to substitute his or her preferences or choices of a good or service, this would mean that it is primarily the trustee rather than the beneficiary is benefiting from the disbursement, as the freedom to choose for each individual is an inalienable right that cannot be surrendered to another individual, even a relative, unless the individual is truly incapable or willingly surrenders these decision-making powers to another.

This is why often senior citizens resist going into assisted living homes, where they fear they would have to surrender freedom, e..g, have staff make choices for them.  Even so, such choices must be made to benefit the resident and not to enhance the power or self-esteem of staff.   Individual desires and needs have to be ascertained not by assuming the staff already know what an individual resident needs or desires but.

In the case that the trustee of an SNT is unable to perform his or duties, i.e., this capacity or unwilling to put the needs and wants of the benefactor as determined by.

The element of free choice within the parameters of the SNT must at all costs be preserved, and the distinction between guardian and trustee clearly understood by one assuming the position of trustee.

Free choice is a part of every person's dignity and self-respect, the ability to make decisions and choices on one's behalf rather than be dictated by another individual or organization (such as the state).  When we surrender free choice to another individual or group, we instinctively know we are losing our freedom.  And men and women will fight to preserve the freedom which is so dear to them.

The question of whether the trustee has the right to influence the choices made by the benefactor is an interesting one.   Pressuring the benefactor to not purchase what the trustee does not like ("approve of") and buy only what the trustee thinks the benefactor should like is a type of malfeasance, in this author's opinion, based on his own experience and research on the subject.

An example of this would be for the trustee to deliver messages like "I don't have to pay for a penny on your behalf...I don't know if I should let you buy this," which indicate that the trustee is not following the provisions and intent of the SNT.

I know of one particular case where the trustee, in essence, "hijacked" the SNT not for financial gain but for psychological reasons (for the enjoyment of demonstrating mastery to the benefactor and self-mastery to herself, to be able to pin the blame for and assuage her guilt over her own overspending habits on the benefactor, etc.) which she refused to admit.

Admonishments to "spend money with restraint, keeping in mind how hard our parents worked for it to leave it to us" or "My God!  I was shocked at your credit card statement!  I thought it can't be!  How could he spend so much money?" on a subject who is already shopping for clothes at second-hand stores and does not have a cellular plan, automobile, or cable television, things most Americans possess, and is already sensitive to every mood of the trustee make clear this intention.

The trustee is known to have gone out and spent out $55,000 on furniture immediately after she received her share of the inheritance.

The case may be headed to court.

* "projection" in psychological jargon)

The real question a trustee should ask:  Does the good or service fall into the categories stated in the SNT?

Not:  How do I know whether the benefactor will benefit from this even if s/he states s/he will?

  

The trustee might have doubts such as "I am not sure if the item is in conformity with the provisions."  But "I don't think I should have this [because I don't like it or think you should buy something else]" is not a legitimate reason for not approving a good or service unless it is clearly not covered in the categories of the SNT (food shelter to benefit a third party) or a substance/activity that is legal, poses danger to benefactor or others (going to a jihadist training camp in Syria, buying dynamite or a firearm by a benefactor with a felony record, etc.).

(name withdrawn for reasons of privacy)

As racist as anything or anyone it denounces.

As a person of color I have to confront racist--of all colors--"all the time," including from the pages of this newspaper.

Yesterday I read in "Last Days" in The Stranger how deplorable it was for a 35-year-old white man to have a discussion with three black tee-agers, which led to the latter to get off the bus.

But I do not recall The Stranger ever even mentioning the spate of robberies in the last year of Asian women in South Seattle, even when it resulted in a woman being shot to death after refusing to hand over her purse.

All lives matter, not just those of a certain color.

The omission of acts of violence against racial groups other than African-Americans is appallingly racist.

Got to hand it to The Stranger, it's as racist and cowardly, or more, as anything or anyone it denounces.

I, or anyone else, should not have to fear being attacked for simply telling what has happened to me or what I think about what is happening in my community.