Summary
In Knight the plaintiff sued the defendant upon a theory of attractive nuisance when defendant's sand pile, upon which young children often played, caved in and asphyxiated plaintiff's 10 year old child.
Summary of this case from Folda v. City of BozemanOpinion
No. 17041
12-21-1956
Helen KNIGHT, Plaintiff and Appellant, v. KAISER COMPANY, a corporation, E. F. Mitchler, Western Pacific Railway, a corporation, John William Bass, et al., Defendants, Kaiser Company, a corporation, Respondent.*
Charles O. Morgan, Jr., San Francisco, for appellant. Frederick M. Van Sicklen, James C. Calkins, Alameda, for respondent.
Helen KNIGHT, Plaintiff and Appellant,
v.
KAISER COMPANY, a corporation, E. F. Mitchler, Western Pacific Railway, a corporation, John William Bass, et al., Defendants,
Kaiser Company, a corporation, Respondent.*
Dec. 21, 1956.
Hearing Granted Feb. 13, 1957.
Charles O. Morgan, Jr., San Francisco, for appellant.
Frederick M. Van Sicklen, James C. Calkins, Alameda, for respondent.
BRAY, Justice.
Defendant's demurrer to plaintiff's third amended complaint as amended was sustained without leave to amend. Plaintiff appeals from the judgment thereon and presents as the sole question: Does the attractive nuisance doctrine in California apply to sand and gravel piles? Complaint.
Plaintiff was the mother of Johnny William Bass, Jr., who, at the time of his death, was 10 years old. Defendant owned, maintained, operated and controlled certain premises in Stockton on which it maintained large sand and gravel piles and a large conveyor belt. Alongside the piles and the belt was a road or pathway. '* * * children of tender age were in the habit of being upon and playing upon the said premises and the said sand and gravel piles and conveyor belt, and by the ordinary predelictions and impulses of normal children were attracted to and induced to come and to be upon and to play upon the said premises, said sand and gravel piles and conveyor belt; all of which was well known to the defendants, its servants, agents and employees, or by the exercise of reasonable care on their part would have been known to them. * * * the defendants knew and realized, or should have known and realized, that the said sand piles, gravel piles and conveyor involved an unreasonable risk of death or serious bodily harm to children playing on the same as aforesaid in that the children could be injured or killed from falling from the same, from the same falling upon them and in other manners and ways. * * * said children because of their youth were unable to and did not discover the condition or realize the risk involved in intermeddling in said condition or coming within the area made dangerous by the same. * * * a fence, guard or railing would have prevented said children from coming upon and being upon said premises and condition and from intermeddling in same.'
On August 20, 1953, Johnny had been attracted to come upon and to play upon the said piles and belt. Being of tender years he was unable to perceive or appreciate the danger confronting him. Defendant negligently maintained said premises in that it failed to place any fences, guards or railing or other means of excluding small children therefrom. As a result of said negligence Johnny while playing and digging on and in the said piles was asphyxiated, resulting in his death, when one of the sand piles on or in which he was playing collapsed upon him.
Defendant demurred generally and specially. The demurrer was sustained apparently on the theory that in this state the attractive nuisance theory does not apply to sand and gravel piles. Admittedly this question has not heretofore been presented in this state. As we pointed out in Marino v. Valenti, 118 Cal.App.2d 830, 841, 259 P.2d 84, there are a number of exceptions to the general rule that the owner or occupier of land owes no duty to trespassers thereon, except to put or keep it in a reasonably safe condition for them, or to conduct his activities in a manner not to endanger them. One of these in favor of trespassing children is '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.' 118 Cal.App.2d at page 842, 259 P.2d at page 90. As we stated in the Marino case, the so-called 'turn-table' cases started this doctrine, to which the confusing name 'attractive nuisance' has been applied, and we suggested that a more appropriate term would be 'injuries to trespassing children.' See Prosser on Torts, 1941, pp. 617-620.
In the Marino case we pointed out that there was considerable confusion in the authorities as to whether the rule as to trespassing children set forth in the Restatement of Torts, section 339, applied in this state. We endeavored to reconcile the cases upon the subject, including the majority opinion in Puchta v. Rothman, 99 Cal.App.2d 285, 221 P.2d 744 (child injured in an uncompleted building), relied upon by defendant here, which seemed to cast some doubt upon California having adopted the Restatement rule, and we finally concluded, 118 Cal.App.2d at page 842, 259 P.2d at page 80: 'Our review of the decisions in this state convinces us that the rule today in California is substantially as expressed in § 339 of the Restatement of the Law of Torts: * * *' 1
Applying that rule here we find that all its elements appear in plaintiff's complaint. 1. It is alleged that children of tender age were in the habit of playing upon the premises and the piles and belt, and were by their ordinary predelictions and impulses attracted to them and that defendant knew or should have known of that fact and of the danger to the children. This could meet the first and second requirements of the Restatement: 2 '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) 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 * * *.'
2. It is alleged that the children, including Johnny, because of their youth, were unable to and did not discover the condition or realize the risk involved in coming into the area and in intermeddling in the piles. This could meet requirement (c) of the Restatement: '(c) the children because of their youth do not discover the condition or realize the risk involved in intermedding in it or in coming within the area made dangerous by it * * *.'
3. It is alleged that a fence, guard or railing would have prevented the children from coming on the premises and intermeddling. This could meet requirement (d) of the Restatement: '(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.'
Apparently there are only two cases 3 applying the attractive nuisance doctrine to a sand pile. One is Holmberg v. City of Chicago, 1927, 244 Ill.App. 505, where an 11-year-old boy was suffocated by collapsing sand in which he was digging. The pile of sand was about 50 feet in length and about 8 feet in height. The court, in holding that the attractive nuisance doctrine was applicable and that the judgment for plaintiff should be affirmed, said that 'It may be assumed, as a matter of common knowledge, that a pile of sand, especially when located on a public street, would prove attractive to the children of the neighborhood,' at pages 509-510 and 'at first blush, knowing the instincts and the natural urge of children to play and make certain childish adventures, and particularly their natural liking, one might almost say passion, for a sand pile as a source of pleasure, one is inclined to conclude that just such a calamity as happened might have been expected, or anticipated, or thought of as not unreasonably probable.' At pages 511-512. In that case the sand pile was located in a public street, differing thereby from the facts in our case. The other case is Foster v. Lusk, 1917, 129 Ark. 1, 194 S.W. 855. There the complaint charged the defendant with maintaining an insecure stack of ties near a pile of sand, both on the defendant railway's right of way, which pile of sand was attractive to children, which fact was known or should have been known to the defendant; that the 4-year-old plaintiff was attracted to the sand pile and was injured by the stack of ties falling on her. In reversing the trial court's holding that the complaint did not state a cause of action, the reviewing court said, 194 S.W. at page 857: '* * * it is alleged that the attractive sand pile and the insecure stack of ties in juxtapsoition created a dangerous situation, the maintenance of which constituted negligence for which defendants are liable. * * *
'The defendants are not responsible for the negligent act of the tie company in piling the ties insecurely, but their responsibility is for allowing the dangerous stack of ties to remain there, if it was reasonably to be anticipated that children attracted by the pile of sand might be injured. Of that the jury should have been permitted to decide, for the facts stated in the complaint were, if established by evidence, sufficient to make out a case of culpable negligence on the part of the defendants. It cannot be said as a matter of law that a pile of sand placed in a position described in the complaint would not be such an attraction to children that the owner of the premises should not take [it] into consideration in allowing a dangerous agency to be placed contiguous thereto.'
There the injury was not due to danger in the sand pile itself as it is in our case; nevertheless, we see no reason why the doctrine enunciated there should not apply here, 194 S.W. at page 856: 'The plaintiff's right to recover is predicated on the doctrine, so often annouced by the courts, that where an owner permits anything dangerous which is attractive to children, and from which injury may be anticipated, to remain unguarded on his premises, he will be liable if a child attracted to the place is injured thereby.'
In California the courts have refused to apply the doctrine to a pool of water or an open ditch. The leading case to which most of the cases on the subject refer is Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598, where the defendant had allowed his lot to accumulate waters and a pool by reason of an embankment thrown up by the city, which seemed to decide the matter on the theory that 'as to common dangers, existing in the order of nature, it is the duty of parents to guard and warn their children * * *.' 115 Cal. at page 356, 47 P. at page 599. 4 However, the refusal to apply the doctrine was extended to artificially created pools and in the following situations: King v. Simons Brick Co., 52 Cal.App.2d 586, 126 P.2d 627 (clay pit dug by the defendant in which waters accumulated); Beeson v. City of Los Angeles, 115 Cal.App. 122, 300 P. 993 (a pool of water in an open storm ditch); Melendez v. City of Los Angeles, 8 Cal.2d 741, 68 P.2d 971 (open pool in a storm drain); Polk v. Laurel Hill Cemetery Ass'n, 37 Cal.App. 624, 174 P. 414, and Betts v. City & County of San Francisco, 108 Cal.App.2d 701, 239 P.2d 456 (reservoirs); Lake v. Ferrer, supra, 139 Cal.App.2d 114, 293 P.2d 104, and Wilford v. Little, supra, 144 Cal.App.2d 477, 301 P.2d 282 (swimming pools); Ward v. Oakley Co., 125 Cal.App.2d 840, 271 P.2d 536 (mud deposited in waters by a mining company).
In certain cases our courts have worked out a theory to modify the doctrine by rather ingeniously finding a trap connected with the pool or ditch. Thus, in Sanchez v. East Contra Costa Irr. Co., 205 Cal. 515, 271 P. 1060, the doctrine was held to apply to an irrigation ditch, because the ditch had in it a concealed syphon, which constituted a trap. The bait for the trap, said the court, was the shallow body of water in the ditch. 'The children assumed the risk of the open, obvious, notorious danger incident to the canal, containing about 3 feet of water; but they did not assume the risk of an unknown, concealed and unguarded danger.' 205 Cal. at page 518, 271 P. at page 1061.
In Faylor v. Great Eastern Q. Min. Co., 45 Cal.App. 194, 187 P. 101, the bait was a push car in a mining tunnel, the trap was a concealed slope therein filed with water.
As pointed out in Puchta v. Rothman, supra, 99 Cal.App.2d 285, 287, 288, 221 P.2d 744, originally the attractive nuisance doctrine was applied only to machinery under certain circumstances, but it has been extended to various appliances and contrivances such as a losse guy wire which came in contact with a live wire, a wagon attached to the rear of a house being moved through city streets, unlocked ore cars left in an abandoned mining tunnel, a slowly backing railroad train, an unguarded trailer and vat of boiling tar in a city street, an abandoned box of dynamite caps left on a railroad right of way under construction. The court there also stated that its application has been denied in addition to pools, reservoirs and storm drains, to a stable, a dance hall, an icing platform, and an unfinished building. In Lopez v. Capitol Co., 141 Cal.App.2d 60, 296 P.2d 63, it was denied to a building scaffold on a public sidewalk. See 41 Cal.L.Rev. 138 et seq., for a compilation of the cases in California in which the doctrine has been and has not been applied.
Running through all the cases seems to be the proposition that the doctrine does not allow recovery for injuries caused by a danger which a child would be expected to recognize, nor from dangers which could not be remedied without unreasonable trouble or expense, or without destroying the utility of property. We have heretofore shown that the allegations of the complaint meet the requirements of the rule of the Restatement, which rule is recognized in California. Let us now see if they meet the above proposition. Certainly a child of tender years cannot be expected to recognize any danger from a sand pile. It is doubtful if there is anything that will attract a child and upon which he will fearlessly climb and play, more than will a sand pile. 5 Thus that requirement is met. In view of the allegations of the complaint, which, of course, we must assume are true, it is apparent that the second requirement of the proposition is likewise met. It is alleged that defendant knew or should have known that children were in the habit of playing on the piles. Certainly to fence or guard the piles would not, on the face of it, at least, cause unreasonable trouble or expense, or in anywise destroy the utility of the property. It would be for the jury to determine these questions.
Prosser on Torts, 1941 ed. pp. 619-620, states: 'The better authorities now agree that the element of 'attraction' is important only in so far as it may mean that the trespass is to be anticipated, and that the basis of liability is merely the foreseeability of harm to the child, and considerations of common humanity and social policy which curtail the defendant's privilege to use the land as he sees fit.' That this is the modern tendency and that the questions involved are for the jury, is well illustrated by Kahn v. James Burton Company, 1955, 5 Ill.2d 614, 126 N.E.2d 836. There a child was injured when a pile of lumber left without adequate support on a vacant lot upon which the defendant was constructing a residence, upon which he had been playing, toppled over. The court said, 126 N.E.2d at page 840: '* * * the questions whether the lumber was so piled as to create an unreasonable danger to children playing thereon, and whether it was so attractive to children as to suggest the probability that children would climb onto it, were questions for the jury under the circumstances shown in the record. * * *
'A similar conclusion must follow in the present case. The creator of certain conditions dangerous and hazardous to children because of their immature appreciation of such dangers and hazards must be held to a certain standard of conduct for the protection of such children in accordance with the attendant circumstances and conditions. Account must be taken of the cost and burden of taking precautionary measures and of the right of families and society to rear and develop children with freedom of activity in their communities, without being subject to unreasonable risks which might cause serious injury or death to such children. All men are presumed to know those things which are matters of common knowledge and must be held, in the absence of actual knowledge or notice, to have reasonably anticipated such occurrences as in the ordinary nature of things reasonable men should know will probably occur. * * * The test in the case at bar is whether the lumber company in the exercise of ordinary care could reasonably have anticipated the likelihood that children would climb onto the lumber and would be injured if it were not securely piled.'
In our case it is alleged that defendant knew or should have known that children were actually playing on the piles. In the Kahn case, the court points out, as does Prosser (p. 618), that the labeling of a certain set of facts as being an 'attractive' nuisance case or a 'turnable' case is a misnomer and has led to undesirable conclusions. 'The inclination is then to find a stare decisis pigeonhole or category.' 126 N.E.2d at page 841. As a result irreconcilable conclusions have been reached. One is that because of immature judgment the child was attracted and allured to certain premises and therefore is no longer a trespasser. Another conclusion is that this same immature child was attracted to the premises by object A, but was injured by object B, and therefore his injury was not occasioned by the attracting cause. Still another conclusion relates to water courses, ponds and lakes. The water in itself has been held cannot be the attraction for liability to attach, but if the child is attracted by such attractive objects as floating logs, rafts, boardwalks, tree stumps, etc., and is drowned, liability will attach even though the death is not in the least occasioned by the attracting objects. The court then states, and we agree with the statements, 126 N.E.2d at pages 841, 842: 'In view of the foregoing conflict and the fact that, as many courts have declared, a child in his youthful fancy, imagination and ingenuity can make a plaything of almost anything and is attracted by almost everything, the only proper basis for decision in such cases dealing with personal injuries to children are the customar rules of ordinary negligence cases. * * * The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child. Whether the lumber pile was sufficiently attractive to entice children into climbing upon it, whether its condition would involve danger from such activity, and whether the contractor should have anticipated the probability of the accident, were matters for determination by the jury.' (Emphasis added.) In Hawk v. City of Newport Beach, 46 Cal.2d 213, 293 P.2d 48, 50, a youth 17 years of age was injured when he dove into the ocean from a rock on the beach maintained by the city as a recreational area. Although not based on the attractive nuisance doctrine, but on the charge that the situation constituted a 'dangerous or defective condition' of the city's property, the ruling is of some significance here, for the city contended it could not be held liable because the rock and its surrounding area were natural conditions unaltered by any act of the city. The court held that a natural condition may constitute, under certain circumstances, a dangerous or defective condition so as to permit the imposition of liability, and whether it did, was a question for the jury.
In Lopez v. Capitol Co., supra, 141 Cal.App.2d 60, at page 69, 296 P.2d 63, at page 67, the court said: 'Negligence is relative to time, place and circumstances, and the question here is as to what was the duty of the respondents and as to what they should have foreseen in view of the knowledge which the complaint charges them with possessing.'
In view of the trend of the later cases in California, we believe that the time has come in this state to end the confusion caused by devious methods of avoiding the originally strict application of 'attractive nuisance' and 'turntable' cases, and to frankly apply in cases of injury to trespassing children the customary rules of ordinary negligence cases, making the true basis of liability in the particular instance the foreseeability of harm to the child, and, in the words of the Restatement, section 339, 'the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.'
Under the allegations of the complaint in our case, if, as alleged, defendant knew or should have known that children were actually playing on the sand and gravel piles, a jury 'knowing the instincts and the natural urge of children to play and make certain childish adventures, and particularly their natural liking, one might almost say passion, for a sand pile as a source of pleasure,' Holmberg v. City of Chicago, supra, 244 Ill.App. 505, 511, could have found that the sand and gravel piles were a source of danger to the children, which danger defendant could easily and inexpensively have guarded against, and hence could have found defendant liable for Johnny's death.
The judgment is reversed.
PETERS, P. J., and FRED B. WOOD, J., concur. --------------- * Opinion vacated 312 P.2d 1089. 1 It appears, however, that California, although accepting the Restatement rule, has jointed those states (see 65 C.J.S., Negligence, § 29(14), p. 479) which have refused to apply it to ponds, reservoirs and swimming pools. See California Annotations to the Restatement of the Law of Torts, 141-142; Wilford v. Little, 144 Cal.App.2d 477, 301 P.2d 282: Lake v. Ferrer, 139 Cal.App.2d 114, 293 P.2d 104 (hearing in both of these cases denied by Supreme Court). The reason given in the Wilford case, 144 Cal.App.2d at page 481, 301 P.2d at page 285, is: 'Courts in California have held repeatedly that a body of water, natural or artificial, is not such a thing as may be held to constitute an attractive nuisance. It may be attractive to children but it is also of a common and ordinary nature of that which is to be found anywhere.' 2 By the expression 'could meet' in this and other sentences, we mean that a jury could so find, in effect. 3 Baxter v. Park, 1925, 48 S.D. 506, 205 N.W. 75 and Hawley v. City of Atlantic, 1894, 92 Iowa 172, 60 N.W. 519, cited by plaintiff as dealing with sand piles, do not. They involved collapse of sand from the side of a pit or excavation. 4 But in the Peters case the court said, 115 Cal. at page 356, 47 P. at page 599: 'But, with respect to dangers specially created by the act of the owner, novel in character, attractive and dangerous to children, easily guarded and rendered safe, the rule is, as it ought to be, different; and such is the rule of the turntable cases, of the lumberpile cases, and others of a similar character.' 5 In Holmberg v. City of Chicago, supra, 1927, 244 Ill.App. 505, at page 509, the court said that it might be assumed as a matter of common knowledge that a sand pile is attractive to children in the street. We believe that even on private property it would be equally alluring, although, of course, not so available.