Opinion
C.A. No. 00C-03-039
Submitted: June 22, 2001
Decided: September 28, 2001
Upon Consideration of Defendant's Motion For Summary Judgment GRANTED in Part DENIED in Part.
I. Barry Guerke, Esq., Dover, Delaware. Attorney for Plaintiffs. Colin M. Shalk, Esq., Wilmington, Delaware. Attorney for Defendant.
OPINION
The plaintiff, Brandon Johnson, was injured when he was struck by an all-terrain vehicle ("ATV") operated by Randall Pritchett. At the time, Randall was eleven years of age. The boys were in the backyard of the Pritchett home, which was owned by Randall's father, defendant Ronald Pritchett. Brandon was playing with Randall's younger brothers, Kyle and Eric, ages nine and eight. Randall was riding around on the ATV by himself. Apparently, Brandon tripped and fell while getting a medicine kit and was then run over by Brandon on the ATV. At the time, Randall's father was sitting on a set of steps at the side of the house talking with Brandon's father, Kenneth Johnson. The two were friends. From the side steps they could not actually see the boys playing because the corner of the house blocked their view. By taking just a few steps around the corner of the house, however, they could see the boys playing; and Ronald Pritchett had gone into the backyard at least once and told Randall to slow down. The defendant has moved for summary judgment on the grounds that the premises guest statute applies and the plaintiff cannot show the injury was caused by willful or wanton disregard of the plaintiff's rights. The plaintiff argues that on the facts of this case the doctrine of attractive nuisance applies and the premises guest statute, therefore, does not apply. He also argues that even if the premises guest statute does apply, there is a question of fact regarding the willfulness or wantonness of the defendant's conduct, which precludes summary judgment. For the reasons which follow, I have concluded that the doctrine of attractive nuisance does not apply to the facts of this case and that the defendant will have the benefit of the guest premises statute. I have also concluded, however, that there is a sufficient jury issue as to whether the defendant's conduct rose to the level of a willful or wanton disregard of the rights of the plaintiff that a grant of summary judgment on that issue is not appropriate.
STANDARD OF REVIEW
Summary judgment is appropriate if, after viewing the record in the light most favorable to the non-moving party, the court finds no genuine issue of material fact. When the facts permit a reasonable person to draw but one inference, the question becomes one for decision on summary judgment. However, if from the evidence produced, there is a reasonable indication that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law, summary judgment will not be granted. In discharging this function, the court must view the evidence in the light most favorable to the non-moving party. In doing so, the court will accept as established all undisputed factual assertions made by either party, and accept the non-movant's version of any disputed facts.
Guy v. Judicial Nominating Comm'n, Del. Super., 659 A.2d 777, 780 (1995); Figgs v. Bellevue Holding Co., Del. Super., 652 A.2d 1084, 1087 (1994).
Frelick v. Homeopathic Hops. Ass'n, Del. Super., 150 A.2d 17, 18 (1959); Wooten v. Kiger, Del. Supr., 226 A.2d 238, 240 (1967).
Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 470 (1962), rev'd in part and aff'd in part, 208 A.2d 495 (1965).
Merrill v. Crothall-American, Inc., Del. Supr., 606 A.2d 96, 99 — 100 (1992).
FACTS
In addition to the facts set forth above, the pertinent facts, viewed in the light most favorable to the plaintiff, include the following. On August 25, 1998, Kenneth Johnson took Brandon over to the Pritchett house so that he could play with Kyle and Eric. They started playing in the backyard. Randall was also in the back yard, doing "donuts" with the ATV, in other words, riding it around in circles. Mr. Johnson paused to chat with Mr. Pritchett at the side steps. According to the deposition testimony of Randall, his father had told him not to make sharp turns but had not told him not to do "donuts." As the boys continued to play and Randall continued to do his "donuts," it started getting dark, and the ATV was kicking up a lot of dust. At one point, Ronald went into the backyard and told Randall to slow down. According to the deposition testimony of Brandon, however, Randall did not slow down. As Randall was doing his last "donut" before the collision, he remembers Kyle and Eric to the right of his path — not in it, but to the right of it. He was about two feet from Brandon when he saw Brandon trip and fall. It is unclear as to whether Randall actually saw Brandon fall into his path, because he analogizes Brandon as being like a shadow. In any event, after Brandon tripped and fell, Randall couldn't get stopped and accidently ran over him. The boys had been in the backyard for about an hour when the accident occurred.Mr. Pritchett had built a little roadway in his backyard, apparently intended as a place for Randall to ride his ATV. It was raised somewhat higher than ground level. Mr. Pritchett's deposition testimony concerning the roadway consisted of the following:
Q. . . . is that a raised area that Randall uses as a ramp to go over with the ATV?
A. I made a roadway. I built up above the ground.
Q. It's actually like a little track?
A. Little roadway, yeah.
In his deposition testimony, Randall made the following comments about the "track":
Q. Now, at the time you were riding in circles, were you doing donuts or were you like on the track road that your dad built?
A. I was really just doing donuts. My dad never really did get to make the track completely. He was trying, but he never did make it.
Mr. Pritchett had bought the ATV specifically for Randall three and an half years earlier when Randall was seven. It was 80 cc. According to the deposition of a representative of the dealer, the paperwork relating to the purchase included the following statements: "I [the purchaser] understand that a child under 12 should not operate this ATV. The dealer has clearly represented that this ATV is not appropriate for use by a child under 12." — "Operation of this ATV by children under the age of 12 increases the risk of severe injury or death. NEVER permit children under age 12 to operate this ATV." — "This ATV, and any other ATV 70 cc or greater, should not be operated by a child under 12 years old." — "Use by children of ATVs that are not recommended for their age can lead to severe injury or death of the child." Mr. Pritchett did not recall receiving a copy of an owner's manual, but he did acknowledge being aware of the statements, or some of them, that the ATV should not be operated by a child less than twelve.
ATTRACTIVE NUISANCE
In opposition to the defendant's motion, the plaintiff argues that all he need show at trial is simple negligence because the premises guest statute does not apply. The premises guest statute shields owners and occupiers of residential and farm properties from liability for simple negligence which they commit on their properties. The plaintiff relies upon Porter v. Delmarva Power Light Co., Fox v. Fox, and Degners v. Biddle. In Porter the Supreme Court held that the premises guest statute does not pertain to a trespassing child's claim that injury was caused by an attractive nuisance, as that doctrine is set forth in Restatement (Second) of Torts § 339. In Fox the Supreme Court adopted Restatement (Second) of Torts § 343B, which provides that a child who is a licensee or an invitee may assert an attractive nuisance claim if such a claim could be made had the child been a trespasser. However, the court also noted in that case that an element of the attractive nuisance doctrine is that the injury be caused by "an artificial condition upon the land," and that the doctrine does not apply if the injury is solely caused by activities taking place upon the land. In that case the child was injured when her foot slipped under a riding lawn mower being operated by a relative. The court stated that a riding lawn mower was not a condition upon the land. In Degners the Superior Court denied a motion for summary judgment in a case where an ATV operated by a child ran off a dirt lane and struck a tree, injuring a child passenger. The language of the decision makes it clear that an attractive nuisance claim could be maintained only if the accident was caused by some condition of the lane, as opposed to the child driver's operation of the ATV. In this case the plaintiff contends that the track constructed by Randall's father is a condition upon the land. He also contends that the operation of the ATV by the defendant's son was a dangerous activity "far beyond" the performance of a domestic chore, such as the one involved in Fox. However, even when the evidence is viewed in the light most favorable to the plaintiff, there is no evidence that the track built by Mr. Pritchett caused the plaintiff's injury or was related to the accident in any way. The accident was caused by the way Randall was riding the ATV and/or the actions of the other children. Although the track is in the backyard, there is no evidence that it was a factor in the accident. The injury was caused by activities of people on the land, not by any artificial condition upon the land. Therefore, the attractive nuisance doctrine is not applicable to this case. In addition, where the injury is not caused by an artificial condition upon the premises, the dangerousness or nature of activities which the occupier engages in on his property do not play a role in attractive nuisance analysis. The activities involved here were all ancillary to the fact that the property was the Pritchett's residence. The defendant is clearly within the class of people protected by the statute. Accordingly, summary judgment is granted insofar as the defendant's motion seeks a determination that the premises guest statute is applicable to this case.
No person who enters onto private residential or farm premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injuries or damages sustained by such person while on the premises unless such accident was intentional on the part of the owner or occupier or was caused by the wilful or wanton disregard of the rights of others. 25 Del. C. § 1501.
Del. Supr., 547 A.2d 124 (1988).
Del. Supr., 729 A.2d 825 (1999).
Del. Super., 94C-09-034, Quillen, J. (Dec. 17, 1976) (ORDER).
Restatement (Second) of Torts § 339.
WILFUL OR WANTON CONDUCT
Even where the premises guest statute is applicable, the plaintiff can still prevail if he can prove that the injury was caused by the defendant's wilful or wanton disregard of the rights of others. Wilful and wanton each refer: to a distinct state of mind, one a conscious awareness, the other a conscious indifference . . . each requires that the defendant foresee that his unacceptable conduct threatens a particular harm to the plaintiff either individually or as part of a class similarly situated . . . Wilfulness and wantonness involve an awareness, either actual or constructive, of one's conduct and a realization of its probable consequences, while negligence lacks any intent, actual or constructive.
Jardel Co., Inc. v. Hughes, Del. Supr., 523 A.2d 528, 529-30 (1987).
Here there is evidence that the defendant consciously disregarded the safety warnings which he was given when he bought the ATV, warnings which advised him that the ATV should not be entrusted to a child less than twelve because of a risk of injury. Although the warnings spoke in terms of risk of injury to the child operator, one can infer that that risk reasonably extends to the child operator, child passengers, or children in the immediate vicinity of the ATV. Even though the father was nearby, he was allowing the child to operate the ATV without direct supervision. There is evidence that the defendant was aware that his son was driving the ATV somewhat recklessly and doing so in the immediate vicinity of the other children. Under these circumstances, I am not prepared to conclude that a reasonable juror could not find that the defendant's state of mind rose to the level of wilful or wanton. The motion for summary judgment will, therefore, be denied.
I suspect, however, that it will be extremely difficult for the plaintiff to persuade a jury that the defendant's state of mind rose to the level of wilfulness or wantonness. It may be more likely that a jury will conclude that he was simply negligent in his supervision of his son that day. However, for the reasons stated, I conclude that a jury issue exists and that the defendant is not entitled to judgment as a matter of law. Therefore, the plaintiff's motion is granted in part and denied in part. IT IS SO ORDERED.