Frolic of His Own (5 page)

Here we take judicial notice of counterclaims filed on behalf of defendant James B seeking to have this court hold both plaintiff and the village and other parties thereto liable for wilfully creating, installing and maintaining an attractive nuisance which by its very nature and freedom of access constitutes an allurement to trespass, thus enticing the dog into its present allegedly dangerous predicament. Here plaintiff demurs, the Village joining in his demurrer, offering in exhibit similar structures of which Cyclone Seven is one of a series occupying sites elsewhere in the land, wherein among the four and on only one occasion a similar event occurred at a Long Island, New York, site in the form of a boy similarly entrapped and provoking a similar outcry until a proffered ten dollar bill brought him forth little the worse. However, a boy is not a dog, and whereas in the instant case Cyclone Seven posed initially a kind of ornate ‘jungle gym' to assorted younger members of the community, we may find on the part of Spot absent his testimony neither a perception of challenge to his prowess at climbing nor any aesthetic sensibility luring him into harm's way requiring a capacity to distinguish Cyclone Seven as a work of art from his usual environs in the junk yard presided over by defendant James B's father and guardian ad litem, where the progeny of man's inventiveness embraces three acres of rusting testimony thereto, and that hence his trespass was entirely inadvertent and in good likelihood dictated by a mere call of nature as abounding evidence of similar casual missions on the part of other members of the local dog community in the sculpture's immediate vicinity attest.

In taking judicial notice of defendant's counterclaim charging allurement we hold this charge to be one of ordinary negligence liability, already found to be without merit in this proceeding; however, we extend this judicial notice to embrace that section of plaintiff's response to the related charge of dangerous nuisance wherein plaintiff alleges damage from the strong hence derogatory implication that his sculptural creation, with a particular view to its internal components, was designed and executed not merely to suggest but to actually convey
menace, whereto he exhibits extensive dated and annotated sketches, drawings, and notes made, revised, and witnessed in correspondence, demonstrating that at no time was the work, in any way or ways as a whole or in any component part or parts or combinations thereof including but not limited to sharp planes, spirals, and serrated steel limbs bearing distinct resemblances to teeth, ever in any manner conceived or carried out with intent of entrapment and consequent physical torment, but to the contrary that its creation was inspired and dictated in its entirety by wholly artistic considerations embracing its component parts in an aesthetic synergy wherein the sum of these sharp planes, jagged edges and toothlike projections aforementioned stand as mere depictions and symbols being in the aggregate greater than the sum of the parts taken individually to serve the work as, here quoting the catalogue distributed at its unveiling, ‘A testimony to man's indiminable [
SIC
] spirit.'

We have in other words plaintiff claiming to act as an instrument of higher authority, namely ‘art,' wherewith we may first cite its dictionary definition as ‘(1) Human effort to imitate, supplement, alter or counteract the work of nature.' Notwithstanding that Cyclone Seven clearly answers this description especially in its last emphasis, there remain certain fine distinctions posing some little difficulty for the average lay observer persuaded from habit and even education to regard sculptural art as beauty synonymous with truth in expressing harmony as visibly incarnate in the lineaments of Donatello's David, or as the very essence of the sublime manifest in the Milos Aphrodite, leaving him in the present instance quite unprepared to discriminate between sharp steel teeth as sharp steel teeth, and sharp steel teeth as artistic expressions of sharp steel teeth, obliging us for the purpose of this proceeding to confront the theory that in having become self referential art is in itself theory without which it has no more substance than Sir Arthur Eddington's famous step ‘on a swarm of flies,' here present in further exhibits by plaintiff drawn from prestigious art publications and highly esteemed critics in the lay press, where they make their livings, recommending his sculptural creation in terms of slope, tangent, acceleration, force, energy and similar abstract extravagancies serving only a corresponding self referential confrontation of language with language and thereby, in reducing language itself to theory, rendering it a mere plaything, which exhibits the court finds frivolous. Having here in effect thrown the bathwater out with the baby, in the clear absence of any evidentiary facts to support defendants' countercharge ‘dangerous nuisance,' we find it without merit.

We next turn to a related complaint contained in defendant James B's
cross claim filed in rem Cyclone Seven charging plaintiff, the Village, ‘and other parties and entities as their interests may appear' with erecting and maintaining a public nuisance in the form of ‘an obstruction making use of passage inconvenient and unreasonably burdensome upon the general public' (Fugate v. Carter, 151 Va. 108, 144 S.E. 483, 1928; Regester v. Lincoln Oil Ref. Co., 95 lnd.App. 425, 183 N.E. 693, 1933). As specified in this complaint, Cyclone Seven stands 24 feet 8 inches high with an irregular base circumference of approximately 74 feet and weighs 24 tons, and in support of his allegation of public nuisance defendant cites a basic tenet of early English law defining such nuisance as that ‘which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects,' further citing such nuisance as that which ‘injuriously affects the safety, health or morals of the public, or works some substantial annoyance, inconvenience or injury to the public' (Commonwealth v. South Covington & Cincinnati Street Railway Co., 181 Ky. 459, 463, 205 SW 581, 583, 6 A.LR 118, 1918). Depositions taken from selected Village residents and submitted in rem Cyclone Seven include: ‘We'd used to be this nice peaceable town before this foreigner come in here putting up this [expletive] piece of [obscenity] brings in every [expletive] kind of riffraff, even see some out of state plates'; ‘Since that (expletive) thing went up there I have to park my pickup way down by Ott's and walk all hell and gone just for a hoagie'; ‘Let's just see you try and catch a train where you can't hardly see nothing for the rain and sleet and you got to detour way round that heap of [obscenity] to the depot to get there'; ‘I just always used the men's room up there to the depot but now there's times when I don't hardly make it'; ‘They want to throw away that kind of money I mean they'd have just better went and put us up another (expletive) church.'

Clearly from this and similar eloquent testimony certain members of the community have been subjected to annoyance and serious inconvenience in the pursuit of private errands of some urgency; however recalling to mind that vain and desperate effort to prevent construction of a subway kiosk in Cambridge, Massachusetts, enshrined decades ago in the news headline PRESIDENT LOWELL FIGHTS ERECTION IN HARVARD SQUARE, by definition the interests of the general public must not be confused with that of one or even several individuals (People v. Brooklyn & Queens Transit Corp., 258 App.Div. 753, 15 N.Y.S.2d 295, 1939, affirmed 283 N Y. 484, 28 N.E.2d 925, 1940); furthermore the obstruction is not so substantial as to preclude access (Holland v. Grant County, 208 Or. 50, 298 P.2d 832, 1956; Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95, 1954), and in finding the former freedom of access to have been provided by mere default where no delineated path or thoroughfare was ever ordained or even contemplated this claim is denied.

On a lesser count charging private nuisance, H R Suggs Jr, joins himself to this proceeding via intervention naming all parties thereto in his complaint on grounds of harboring a dog ‘which makes the night hideous with its howls' which the court severs from this action nonetheless taking judicial notice of intervener's right inseparable from ownership of the property bordering directly thereupon, to its undisturbed enjoyment thereof (Restatement of the Law, Second, Torts 2d, 822C), and remands to trial. Similarly, whereas none of the parties to this action has sought relief on behalf of the well being and indeed survival of the sculpture's unwilling resident, and whereas a life support system of sorts has been devised pro tem thereto, this matter is not at issue before the court, which nonetheless, taking judicial notice thereof should it arise in subsequent litigation, leaves it for adjudication to the courts of this local jurisdiction.

We have now cleared away the brambles and may proceed to the main action as set forth in plaintiff's petition for a preliminary injunction seeking to hold inviolable the artistic and actual integrity of his sculptural creation Cyclone Seven in situ against assault, invasion, alteration, or destruction or removal or any act posing irreparable harm by any person or persons or agencies thereof under any authority or no authority assembled for such purpose or purposes for any reason or for none, under threat of recovery for damages consonant with but not limited to its original costs. While proof of ownership is not at issue in this proceeding, parties agree that these costs, including those incident to its installation, in the neighborhood of fourteen million dollars, were borne by contributions from various private patrons and underwritten by such corporate entities as Martin Oil, Incidental Oil, Bush AFG Corp., Anco Steel, Norfolk & Pee Dee Railroad, Frito-Cola Bottling Co., and the Tobacco Council, further supported with cooperation from the National Arts Endowment and both state and regional Arts Councils. The site, theretofore a weed infested rubble strewn area serving for casual parking of vehicles and as an occasional dumping ground by day and trysting place by night, was donated under arrangements worked out between its proprietor Miller Feed Co. and the Village in consideration of taxes unpaid and accrued thereon over the preceding thirty-eight years. In re the selection of this specific site plaintiff exhibits drawings, photographs, notes and other pertinent materials accompanying his original applications to and discussions with the interested parties aforementioned singling out the said site as ‘epitomizing that unique American environment of moral torpor and spiritual vacuity' requisite to his artistic enterprise, together with correspondence validating his intentions and applauding their results. Here we refer to plaintiff's exhibits drawn from contemporary accounts in the press of ceremonies inaugurating the
installation of Cyclone Seven wherein it was envisioned as a compelling tourist attraction though not, in the light of current events, for the reasons it enjoys today. Quoted therein, plaintiff cites, among numerous contemporary expressions of local exuberance, comments by then presiding Village Board member J Harret Ruth at the ribbon cutting and reception held at nearby Mel's Kandy Kitchen with glowing photographic coverage, quoting therefrom ‘the time, the place, and the dedication of all you assembled here from far and wide, the common people and captains of industry and the arts rubbing elbows in tribute to the patriotic ideals rising right here before our eyes in this great work of sculptural art.'

Responding to plaintiff's exhibits on this count, those of defendant appear drawn well after the fact up to and including the present day and provoked (here the court infers) by the prevailing emotional climate expressed in, and elicited by, the print and television media, appending thereto recently published statements by former Village official J Harret Ruth in his current pursuit of a seat on the federal judiciary referring to the sculptural work at the center of this action as ‘a rusting travesty of our great nation's vision of itself and while we may pause to marvel at his adroitness in ascertaining the direction of the parade before leaping in front to lead it we dismiss this and supporting testimony supra as contradictory and frivolous, and find plaintiff's exhibits in evidence persuasive.

Another count in plaintiff's action naming defendants both within and beyond this jurisdiction seeks remedy for defamation and consequent incalculable damage to his career and earning power derived therefrom (Reiman v. Pacific Development Soc., 132 Or. 82, 284 P. 575, 1930; Brauer v. Globe Newspaper Co., 351 Mass. 53, 217 N.E.2d 736, 1966). It is undisputed that plaintiff and his work, as here represented by the steel sculpture Cyclone Seven, have been held up to public ridicule both locally and, given the wide ranging magic of the media, throughout the land, as witnessed in a cartoon published in the South Georgia Pilot crudely depicting a small dog pinioned under a junk heap comprising old bedsprings, chamber pots, and other household debris, and from the Arkansas Family Visitor an editorial denouncing plaintiff's country of origin as prominent in the Soviet bloc, thereby distinctly implying his mission among us to be one of atheistic subversion of our moral values as a Christian nation, whereas materials readily available elsewhere show plaintiff to have departed his birthplace at age three with his family who were in fact fleeing the then newly installed Communist regime. We take judicial notice of this exhibit as defamatory communication and libellous per se, tending ‘to lower him in the estimation of the
community or to deter third persons from associating or dealing with him' (Restatement of the Law, Second, Torts 2d, 559), but it remains for plaintiff to seek relief in the courts of those jurisdictions.

Similarly, where plaintiff alleges defamation in this and far wider jurisdictions through radio and television broadcast we are plunged still deeper into the morass of legal distinctions embracing libel and slander that have plagued the common law since the turn of the seventeenth century. As slander was gradually wrested from the jurisdiction of the ecclesiastical courts through tort actions seeking redress for temporal damage rather than spiritual offense, slander became actionable only with proof or the reasonable assumption of special damage of a pecuniary character. Throughout, slander retained its identity as spoken defamation, while with the rise of the printing press it became libel in the written or printed word, a distinction afflicting our own time in radio and television broadcasting wherein defamation has been held as libel if read from a script by the broadcaster (Hartmann v. Winchell, 296 N.Y. 296, N.E.2d 30, 1947; Hryhorijiv v. Winchell, 1943, 180 MISC. 574, 45 N.Y.S.2d 31, affirmed, 267 App.Div. 817, 47 N.Y.S.2d 102, 1944) but as slander if it is not. But see Restatement of the Law, Second, Torts 2d, showing libel as ‘broadcasting of defamatory matter by means of radio or television, whether or not it is read from a manuscript' (#568A). Along this tortuous route, our only landmark in this proceeding is the aforementioned proof or reasonable assumption of special damage of a pecuniary character and, plaintiff failing in these provisions, this remedy is denied.