Opinion
36043.
DECIDED APRIL 4, 1956.
Action for damages. Before Judge Baldwin. Macon City Court. November 21, 1955.
Bell Bell, for plaintiff in error.
Martin, Snow Grant, Hendley V. Napier, contra.
The petition did not allege a cause of action against the defendant under the "turntable" or attractive-nuisance doctrine; therefore the court did not err in sustaining the demurrers thereto and in dismissing the action.
DECIDED APRIL 4, 1956.
Ronnie Dawley, by next friend, sued Sheridan-Punaro Company for damages allegedly caused by the defendant's negligence. The petition alleged in substance: that Ronnie Dawley, an infant of tender years, who sues by Mrs. June Dawley Ring as next friend, shows that Sheridan-Punaro Company has injured and damaged said minor child in the sum of Seven Thousand Five Hundred Dollars ($7,500), arising on the following state of facts; that the defendant corporation on March 14, 1955, and for a long time prior thereto was the owner of the premises known as Walnut Street Apartments; that approximately three weeks prior to March 14, 1955, the said defendant, Sheridan-Punaro Company, did erect and maintain a scaffold jack on these said premises for the purpose of permitting the said building to be repaired, and during said time and three weeks prior to March 14, 1955, the said defendant did negligently permit the said scaffold jack to remain in the yard of said building, although they knew that the said scaffold jack was attractive to children of tender years, and being so attractive, constituted an invitation to children to come and play thereon; and that children of tender years, including the infant plaintiff, did enter upon and play upon said scaffold jack on numerous occasions, which fact was known to the defendant, or in the exercise of reasonable care should have been known to the defendant herein, and that the said defendant corporation did know that the said scaffold jack was dangerous and attractive to children and did fail to take any steps to protect and guard against injury to children and in particular to this plaintiff; that the infant plaintiff on the 14th day of March, 1955, was attracted and enticed by the said scaffold jack and he did enter upon and play upon said scaffold jack on the date aforesaid; that as said time and place the building known as Walnut Street Apartments consisted of twelve apartments and is located on Walnut Street in the city of Macon and county of Bibb and had a frontage of at least one hundred fifty (150) feet and the twelve apartments face Walnut Street; that at the time his mother and his next friend was residing in an apartment known as 935 Walnut Street, and the scaffold jack which was being used at the time upon the premises by the defendant company was located on the side of the front steps to the apartment known as 931 Walnut Street, and the scaffold jack was approximately twenty-five to thirty feet high, and the scaffold jack was occupying part of the premises directly in front of the apartment known as 933 Walnut Street; that the said scaffold jack constituted an extreme danger to any infant child and in particular to the infant plaintiff; that the defendant corporation at all times hereinafter and hereinbefore named wrongfully and negligently failed to furnish or provide any adequate sign, signal or method of warning posted or displayed notifying the infant plaintiff, and particularly the children in the Walnut Street Apartments and in the immediate neighborhood, to keep off of said scaffold jack or warning the infant plaintiff of the presence of the said dangerous scaffold jack located and maintained upon said premises, nor were any guards posted or kept in or upon the premises to keep the infant plaintiff or other children of the neighborhood from playing thereon; that prior to March 14, 1955, children and in particular the infant plaintiff were in the habit of entering upon the premises and playing upon and ascending the scaffold jack thereof, which said scaffold jack was left idle upon the said premises which was placed there by the said defendant company, its officers, agents, employees and servants, all of which the defendant company, its officers, agents, employees and servants, knew or should have known by the exercise of reasonable care; that said scaffold jack was owned, controlled, and maintained by the defendant company, and said scaffold jack so maintained and controlled by the defendant company was readily accessible to infants of the age and size of the infant plaintiff; that solely by reason of the facts aforesaid and without any fault or blame on the part of the said infant plaintiff, said infant plaintiff was caused to sustain and did sustain severe, serious personal injuries; that defendant company was negligent in the following respects; by maintaining said scaffold jack upon said premises as aforesaid; in placing said scaffold jack upon said premises without having proper guards to prevent said infant plaintiff from ascending upon said scaffold jack; in failing to keep a proper guard present; in failing to warn said infant plaintiff; in failing to provide adequate signs, signals, or methods of warning posted or displayed notifying said infant plaintiff; in not keeping a proper fence around said scaffold jack; in leaving said scaffold jack exposed, unattended, unguarded or unprotected; in maintaining said scaffold jack upon said premises without protecting said infant plaintiff; in maintaining an attractive nuisance upon said premises; in failing to enclose said scaffold jack; in not notifying or warning said infant plaintiff; in allowing and permitting said scaffold jack to remain upon said premises without being properly guarded; in allowing said scaffold jack to remain upon said premises openly and notoriously; and in leaving and maintaining said scaffold jack accessible to this infant plaintiff.
The defendant's general and special demurrers were sustained and the action was dismissed, and the plaintiff excepts to such judgment.
The action is predicated on the "turntable" or attractive-nuisance doctrine. It has been held in cases too numerous to mention that the principle of the doctrine will not be extended. The instant case falls almost squarely within the holding in Manos v. Myers-Miller Furn. Co., 32 Ga. App. 644 ( 124 S.E. 357), where a child was killed when a tier of shelving upon which he was climbing fell, crushing the child.
We do not deem it necessary to discuss the principle of law involved, but feel that a reference to the cases cited under the catchword "Trespassers" under Code § 105-401 is sufficient.
The court did not err in sustaining the demurrers and in dismissing the action.
Judgment affirmed. Quillian and Nichols, JJ., concur.