Opinion
Sheldon, Bayer, McLean & Glasman, Richard H. Glasman, Denver, for plaintiff-appellant.
Dosh, DeMoulin, Anderson & Campbell, Edward H. Haffey, Denver, for defendant-appellee.
BERMAN, Judge.
This is an appeal from a judgment granting defendant's motion for summary judgment. We affirm.
Plaintiff, insuror-subrogee, instituted this action to recover certain sums for damages caused by defendant's tractor to its insured's property. Plaintiff in its complaint alleged that defendant was negligent in failing to take safety precautions in maintaining his crawler-type tractor so as to prevent the vehicle from being started by third parties. Plaintiff's complaint alleges that 'a minor child or children were attracted to said vehicle and pursuant to the attractive nuisance doctrine the defendant knew or should have known that children of tender years may start said vehicle and cause it to move and collide with objects, persons or things.'
Defendant answered admitting ownership of the vehicle but denying liability, and after service of interrogatories upon plaintiff and receipt of answers thereto, moved for summary judgment, contending that the pleadings and the answers to the interrogatories showed that there was no genuine issue as to any material fact and that he was entitled to judgment as a matter of law. The court granted the motion and dismissed plaintiff's complaint with prejudice.
Defendant's motion for summary judgment was supported by a memorandum of law which relied upon the ruling in Lambotte v. Payton, 147 Colo. 207, 363 P.2d 167. That case held that the owner of a vehicle was not responsible for injuries to third persons received when the owner left his car with the motor running and the car was stolen by a mental incompetent. The court there ruled that the trial court was correct in holding, as a matter of law, that the conduct of the owner of the car in leaving the keys in the ignition and leaving the motor running was not the proximate cause of injuries to third parties.
Plaintiff here sought to use the doctrine of 'attractive nuisance' to impose liability upon the defendant. That doctrine imposes liability upon the owner of dangerous or attractive machinery for the intervening acts of a child where the proper safeguards have not been taken by the owner to prevent the intervening acts of a child from taking place. Simkins v. Dowis, 100 Colo. 355, 67 P.2d 627. Although that doctrine is normally associated with injury to a minor child, it has also been extended to third persons who are injured by the act of the child in setting in motion the 'attractive nuisance.' W. Prosser, Torts s 59. However, there is no direct statement in either the complaint or the answers to interrogatories that any minor children did in fact start the vehicle and cause the damage; thus, the doctrine of attractive nuisance is not available to place this case beyond the reach of the holding in Lambotte v. Payton, Supra.
It is clear from the pleadings that the injury here complained of was caused by the acts of unknown third parties who started defendant's tractor. Thus, Lambotte v. Payton, Supra, is controlling, and the entry of summary judgment was proper.
Judgment affirmed.
ENOCH and Van CISE, JJ., concur.