Hart v. Western Investment and Development Company
| Decision Date | 05 November 1969 |
| Docket Number | No. 136-69.,136-69. |
| Citation | 417 F.2d 1296 |
| Parties | Eric Todd HART, by and through his guardian ad litem Milton Dale Hart, and Milton Dale Hart, Plaintiffs-Appellees, v. WESTERN INVESTMENT AND DEVELOPMENT COMPANY, Inc., a corporation, dba National Trailer Park, Defendant-Appellant, v. Carl E. PENMAN, dba Penman Manufacturing & Supply, Third-Party Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
B. L. Dart, Jr., Salt Lake City, Utah (Roe, Jerman & Dart, Salt Lake City, Utah, on the brief), for appellant.
Wendell E. Bennett, Salt Lake City, Utah (Strong & Hanni, Salt Lake City, Utah, on the brief), for appellees.
Before PHILLIPS, BREITENSTEIN and HICKEY, Circuit Judges.
Eric Todd Hart, by his guardian ad litem, Milton Dale Hart, and Milton Dale Hart, individually, brought this action against Western Investment and Development Company, Inc.1 Eric sought to recover damages for personal injuries and Milton, his father, sought recovery for hospital and medical expenses incurred in the treatment of Eric for such injuries, and paid by Milton.
On June 24 and 25, 1966, and at all other times here material, Western owned and operated a trailer park in Salt Lake City, Utah, and as a part thereof maintained a playground constructed by it. Such playground was paved with hard asphalt, which contained no substance to soften it or give it resiliency. At such times it maintained thereon several playground devices, among which was a climbing device called a "monkey tree." The device had three vertical, cylindrical elements. The upper ends thereof were 8 feet, 4 inches from the asphalt surface paving below. Two of them were joined by a round cross member at their tops and with nine spaced rungs, which together with such two elements formed a ladder from the surface of the pavement to the top of the device. The third vertical element was positioned at a right angle to the ladder, and such third element and the vertical element of the ladder nearest to it were joined together by a round crossbar. Such third element gave stability to the device and also was intended to be used as a sliding pole. A user of the device could climb to the top of the ladder, move over to the third element, and slide down it to the pavement.
The device had two round arms, one of which extended horizontally from the element which formed one side of the ladder, at a point 4 feet, 10½ inches above the surface of the asphalt paving, and the other extended horizontally from the element which formed the other side of the ladder, at a point 5 feet, 11¼ inches above such surface.
The arms were constructed so they could be used as chinning bars, turning bars, and for other acrobatic acts. An expert witness testified that the arms were so constructed that a child could get on them and use them as "twirling devices."
Each arm extended 38 inches from the vertical element to which it was attached. The device had no movable parts and was rigidly constructed.
Western purchased the device from Penman, who manufactured it and delivered it to Western on July 1, 1965. Penman had engaged for a period of more than 30 years in designing and manufacturing playground devices like the one here involved. When Penman delivered the climbing device, he suggested to Western that it install the device in a field west of the paved area and over natural earth, rather than "blacktop." Western's representative rejected the suggestion, stating it had paved and fenced the area, so it could close the gates and keep persons out when it so desired.
Penman also advised Western that the vertical segments should be set in concrete bases submerged 24 inches in the ground; that spaces should be left between the tops of the bases and the surface of the asphalt pavement, and such spaces filled with earth, chips, or sand.
In installing the device, Western constructed the concrete bases so they projected slightly above the paved surface, and the vertical element from which the highest of the two arms extended and the sliding pole element were set in one solid piece of concrete, which extended along that side of the device. Western did not cover either the concrete or any part of the asphalt pavement under or about the device with earth, chips, sand, or other soft or flexible material.
Trial by jury was waived and the case was tried by the court.
Milton, his wife, Marjorie, Eric, and their older son, Brian, checked in at the trailer court on June 24, 1966, and paid for space to park their trailer. That evening, Eric and his brother, Brian, went swimming in the trailer park pool and Eric climbed up part of the way on the ladder of the climbing device, but did not get onto either of the horizontal arms.
On June 25, 1966, Eric was seven and one-half years of age and Brian was nine years of age. On the morning of June 25, 1966, Eric and his brother again went to the playground. Mrs. Hart, while returning to the trailer after disposing of garbage, observed Eric sitting on the highest of the two arms on the climbing device. She testified that he was "perched on the bar arm." She described what she meant by the statement "perched" by saying, "He was sitting on a bar arm like this, with his hands on the bar arm, sitting there looking around." She stated that as she looked at him, he fell off the bar arm, and landed face first on the hard surface under the device; that she ran to him, picked him up, found he was quite limp, and carried him to the trailer. She said there was no part of the device he could reach and grab onto from where he was sitting and break his fall.
Eric was taken initially to the L. D. S. Hospital and after a few hours was transferred therefrom to the Primary Children's Hospital. Both hospitals were located in Salt Lake City, Utah.
As a result of the fall, Eric suffered a cerebral contusion, fractures of the left anterior maxillary bone and of the nasal bone, and facial bruises causing tenderness and swelling of the nonosseous tissues in the area around his left eye and mouth and in and around his nasal bone. Later, the areas around his eyes and the exterior of his nose became black and blue. In addition thereto, the fall may have had some effect on his left arm, in that he did not appear to use it quite as spontaneously as his right arm.
Eric did not remember climbing up on the device or falling from the arm on June 25, 1966. He did remember being in the family automobile and his mother asking for directions to the hospital; a doctor being present with him at the hospital; and someone giving him a mirror with which to look at his face. Although he was not unconscious while in the hospitals, he was bewildered and quite confused and his recollections of events during the time he was going to and while he was in the hospitals were quite vague. While in the Children's Hospital, he also suffered spells of dizziness and vomiting.
After three days in the Children's Hospital, he was discharged to return to his home in Ohio and consult his family physician, from whom he received further treatments.
While traveling from Salt Lake City to his home in Ohio, Eric was lethargic and unsteady and required assistance when he got out of the automobile and moved about. When he arrived home, his nose was swollen and the areas about his eyes and the exterior of his nose were still black and blue. That condition continued until about the beginning of the school year in the fall following the accident. During the school year that followed the accident, Eric was quite inactive and played very little with his brother, Brian.
From the time of the injuries on June 25, 1966, to the time of the trial, Eric suffered from recurring nosebleeds and swelling of the soft tissues of his nose and below his eyes.
By January 1, 1967, the nosebleeds had become somewhat less frequent, but he continued to have them, and his mother testified he suffered from nosebleeds on January 11 and 12, 1969, and also on January 13, 1969, the day she testified with respect thereto. She also testified that on the same days the soft tissues of the upper portion of Eric's nose and of his face below his eyes were swollen.
A medical examination on January 10, 1969, disclosed that the mucosa of his nose was abnormally red and congested.
Dr. Stanley L. Magid, a nose, ear and throat specialist, at the request of counsel for Western, examined Eric on January 10, 1969. At the trial he testified that the fractures of the maxillary and nasal bones had fully knitted and that the fragments of such bones on both sides of the...
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