The store's assistant manager said it had no record of any bird attacks at the store on April 15, 2003, the date the assault allegedly took place. She also pointed out that, as the gardening area is in an area commonly known as the "outdoors," Lowe's is unable to control the movements of birds who may travel in that area.
But Zane Cagle, an attorney for Nichols, insisted that not only was Lowe's responsible, the attack is part of a larger problem. "These wild birds are an issue in many of these types of stores," he said. He also emphasized the seriousness of his client's (alleged) injuries, caused by the size of the Lowe's-sponsored wild bird. "[T]he bird was described to us as being about the size of a robin or pigeon," he emphasized. "This was no sparrow."
A few years ago, when our firm represented Sears, we handled a case in Texas in which a woman sued Sears because a bat had allegedly flown out of the Sears store while she was walking in the mall near the store, frightening her and causing her to lose her balance and fall, breaking her hip. I unfortunately was not able to take the woman's deposition. I wanted to take an issue of National Geographic along and ask if she could pick her assailant out of a lineup.
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