Opinion
Page __
__ Cal.App.2d __ 319 P.2d 742 Dolores GARCIA, a Minor, by Elsie K. Garcia, her Guardian ad litem, Plaintiff and Respondent. v. Harry SOOGIAN, Oliver Bredeson and George Kalajian, Defendants and Appellants. Civ. 9237. California Court of Appeals, Third District Jan. 8, 1958Rehearing Denied Jan. 29, 1958.
Hearing Granted March 6, 1958.
[319 P.2d 743] John James Coffey, Boyes Hot Springs, for appellant.
Cardozo, Trimbur & Nickerson, Modesto, for respondent.
WARNE, Justice pro tem.
This is an appeal from a judgment rendered by the court sitting without a jury in a personal injury action.
The appellants own certain lots in the City of Turlock on which they had intended to build a number of house and in connection with that plan had placed building materials on said premises consisting of various types of paneling, bathtubs, sinks, closets, toilet closets, stoves and various other materials. Some of the panels had glass windows in them and were stacked in piles 24 to 30 inches high. These building materials had been left on the lot approximately two months before the accident. The appellants, at that time, had been temporarily enjoined from proceeding with the construction of the buildings by an injunction issued out of the Superior Court of Stanislaus County.
Approximately at 7:30 o'clock on the evening of June 16, 1954, respondent, then 12 years and eight months old, was playing 'ditch', a form of hide-and-seek with other children around the building materials on said premises, and while doing so attempted to jump over a stack of panels but failed to clear the stack, came down on top of it, fell through the glass part of the panel and cut her ankle severely.
The court, among other things, found that appellants knew and realized that the condition of the panels containing glass involved a reasonable risk of death or serious bodily harm to children; that the appellants knew that children from the immediate neighborhood played upon the premises and around the piles of building materials; that respondent was attracted to the property of the appellants by reason of the location of the building materials. There is substantial evidence to sustain these findings. The record shows that the respondent had not previously played upon these premises and that she did not know it would be dangerous to do so. There is evidence that the panels were not covered by anything, nor were any warning signs posted on the premises. The record also shows that the cost of maintaining the frames in a safe condition would have been slight as compared to the risks to young children since it appears that the frames could have been kept covered with a 'tarp' or by placing some of the other materials on top of the pile.
The principal question presented on this appeal is whether or not the trial court erred in holding that respondent was entitled to recover damages under the doctrine of attractive nuisance.
While the general rule is that an owner owes no duty to trespassers upon his land to put or keep it in a reasonably safe condition for them there are exceptions to this rule. One of the exceptions runs in favor of trespassing children, if their trespass is foreseeable, if the condition of the premises involves an unreasonable risk of harm to them in view of their immaturity, and if the burden of rectifying the condition is slight in comparison with its usefulness and the magnitude of the risk. Marino v. Valenti, 118 Cal.App.2d 830, 842, 259 P.2d 84.
In Restatement of the Law of Torts, Section 339, we find the exceptions stated this way:
'A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) [319 P.2d 744] the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.'
The rule in California is substantially as stated in Restatement. Long .v Standard Oil Co., 92 Cal.App.2d 455, 464-467, 207 P.2d 837; Marino v. Valenti, supra; Large v. Williams, 154 Cal.App.2d 315, 315 P.2d 919; Copfer v. Golden, 135 Cal.App.2d 623, 627-628, 288 P.2d 90.
A duty rested on appellants to protect young and heedless children from themselves and guard them against peril that reasonably might have been foreseen. Whether appellants knew or should have known that children were likely to trespass upon the premises, whether it was inherently dangerous to them if they played or jumped on the frames, whether the appellants should have foreseen such an accident as occurred and whether appellants exercised due care were all questions to be decided by the trial court. Copfer v. Golden, supra; Marino v. Valenti, supra; Roberts v. Del Monte Properties Co., 111 Cal.App.2d 69, 243 P.2d 914; Germann v. Huston, 302 Ill.App. 38, 23 N.E.2d 371, 377; American Ry. Express Co. v. Crabtree, 6 Cir., 271 F. 287, 288; Large v. Williams, supra.
The record shows that none of the children considered the premises a dangerous place to play and that respondent, herself, testified that she did not think it was dangerous to play there. The fact that respondent was a 12 year and eight month old girl at the time of the accident does not, as a matter of law, prevent her from recovering in this case. In the Marino case, supra, 118 Cal.App.2d at page 847, 259 P.2d at page 93, the court said:
'* * * It could not be said as a matter of law that an eleven year old boy, presumed to possess average intelligence for his age, is a responsible agent. The age at which a child attains the capacity of being held responsible for his conduct is one of fact for determination by the trier of the facts. Each case must be determined by its particular facts.'
In Lambert v. Western Pacific Railroad Co., 135 Cal.App. 81, 26 P.2d 824, it was held that a twelve-year old boy was entitled to protection on the theory of attractive nuisance. In Pierce v. United Gas & Electric Co., 161 Cal. 176, 118 P. 700, it was held that a boy of thirteen years was entitled to fall within the protection of the theory of attractive nuisance, and that it could not be held as a matter of law that he had reached such a degree of maturity as to lose the benefit of that doctrine. The same rule is laid down in Brown v. Southern California Edison Company, 120 Cal.App. 102, 7 P.2d 770. Such being the law in California, it was for the trial court to determine whether appellant was of such tender years and of such youth that she did not realize the danger in playing in the area where she was injured.
There is no merit in appellants' contention that the facts of this case reveal respondent was guilty of contributory negligence as a matter of law. That issue was also a question of fact to be determined by the trier of the facts. Ross v. San Francisco Unified School District, 120 App.2d 185, 191, 260 P.2d 663; Schroeder v. Baumgarteker, 202 Cal. 626, 262 P. 740; Mayne v. San Diego Electric Railway Co., 179 Cal. 173, 175 P. 690.
Nor is there any merit in appellants' contention that the object that caused the injury must have been the thing that lured the child onto the premises. The ruling in the case of Marino v. Valenti, supra, is a complete answer to this contention. There the children were attracted onto the premises [319 P.2d 745] by an abandoned shack and only after entering the building did they discover the dynamite caps that caused the injury. The court held that the owner could be held liable. They were not lured into the building by reason of the dynamite caps. Nor is there any merit in the contention that the mother of the appellant was negligent, and because of that negligence it should be imputed to the minor and thereby bar her recovery. In the first place we find nothing in the record to in any way charge the mother with negligence. Secondly, contributory negligence on the part of a parent is not imputed to a minor in an action where the minor seeks to recover damages for his or her own injuries in his or her own name. Staggs v. Atchison, Topeka & Santa Fe Railway Co., 135 Cal.App.2d 492, 287 P.2d 817; Coole v. Haskins, 57 Cal.App.2d 737, 135 P.2d 176; Malloway v. Hughes, 125 Cal.App. 573, 13 P.2d 1062.
The judgment is affirmed.
VAN DYEK, P. J., and PEEK, J., concur.