Anderson v. Cahill, 56009

• Court: Missouri Supreme Court
• Writing for the Court: FRED E. SCHOENLAUB
• Citation: Anderson v. Cahill, 485 S.W.2d 76 (Mo. 1972)
• Decision Date: 11 September 1972
• Docket Number: No. 56009,No. 2,56009,2
• Parties: Johnny ANDERSON, A Minor by His Mother and Next Friend, Rosemary Anderson, Appellant, v. David F. CAHILL d/b/a D. F. Cahill Construction Co. and K. L. Perry Excavating Co. formerly d/b/a K. L. Perry & Sons, Inc., Respondents

Page 76

485 S.W.2d 76

Johnny ANDERSON, A Minor by His Mother and Next Friend Rosemary Anderson, Appellant, v. David F. CAHILL d/b/a D. F. Cahill Construction Co. and K L. Perry Excavating Co. formerly d/b/a K. L. Perry & Sons, Inc., Respondents.

No. 56009.

Supreme Court of Missouri, Division No. 2.

Sept. 11, 1972 Motion for Rehearing or Transfer to Court En Banc Denied Oct. 9, 1972.

Roger J. Barbieri and Commodore M. Combs, Jr., Kansas City, for appellant.

David H. Clark, Robert E. Northrip, Kansas City, for respondent Cahill.

Lowell L. Knipmeyer, Douglas H. Delsemme, Knipmeyer, McCann & Millett, Kansas City, for respondent, K. L. Perry Excavating Co.

FRED E. SCHOENLAUB, Special Judge.

In this action for personal injuries, the trial court sustained defendant's Motion for Directed Verdict at the close of plaintiff's case and plaintiff appeals. Plaintiff was injured when he fell into a ten foot deep excavation on the premises of St. Mary's Church in Independence, Mo. At the time of his injury, October 13, 1962, plaintiff was four years ten months of age.

Defendant Cahill had entered into a construction contract with the church diocese to build an addition to the church. Construction commenced on September 5, 1962. Thereafter, and prior to October 13, 1962, defendant Perry, at the direction of defendant Cahill, dug the rough excavation for the foundation wall footings. This was the extent of defendant Perry's work. Employees of defendant Cahill then erected forms for the foundation, poured the concrete, and were completing work on the foundation when plaintiff was injured. The depth of the excavation pit was approximately ten feet, the space between the foundation wall and the side of the excavation approximately two feet.

Defendant Cahill erected snow fence to separate the construction area from an elementary school and a high school on the church premises and from the entrance to the basement of the church where services were held during construction. The construction area was accessible from Liberty Street through a driveway between the church and elementary school, blocked by a crossbar two to three feet above the ground, and through a two and one half to three foot passageway between two construction sheds and the high school, opening onto a driveway between the rectory and the playground on the corner of the church premises.

Plaintiff lived with his parents and sisters at 211 West Farmer in Indepencence, 125 to 150 feet from the nearest edge of the playground. Plaintiff, with his sisters Kathy, age seven, and Roxie, age six, had been sent by their mother to a grocery store on the southeast corner of College and Main, northeast of the Anderson home and beyond the playground and construction area. They strayed from their errand and found their way into the construction area. At approximately 4:30 P.M., Virgil C. Julian and his brother-in-law, Edwin T. Davis, were looking over the construction job while waiting for Mr. Davis' wife, who was attending church services. They were there fifteen to twenty minutes when Mr. Julian looked up and saw plaintiff going into the excavation pit head first.

Plaintiff contends he made a submissible case under Section 339, Restatement of the Law, Torts, First (1934), and that the trial court erred in directing a verdict for defendants at the conclusion of his case. Missouri has adopted Section 339. Arbogast v. Terminal Railroad Association of St. Louis, Mo., 452 S.W.2d 81; Salanski v. Enright, Mo., 452 S.W.2d 143. Section 339 reads as follows:

'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, 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.'

In overruling plaintiff's Motion for New Trial, the trial judge held Section 339 not applicable, noting a lack of evidence as to how the children got onto the premises, the magnetism of activities at construction sites in attracting children and others, the impracticability of sealing such sites against small children, and the ability of children of any age, including plaintiff, to realize and appreciate the risk involved in falling from high places. In addition, defendant contends plaintiff's evidence failed on each element of Section 339.

In the Comment (p. 920) on Clause (a) the Restatement says:

'It is not necessary that the defendant should know that the condition which he maintains upon his land is likely to attract the trespasses of children or that the children's trespasses shall be due to the attractiveness of the condition. It is sufficient to satisfy the conditions stated in Clause (a) that the possessor knows or should know that children are likely to trespass upon a part of the land upon which he maintains a condition which is likely to be dangerous to them because of their childish propensities to intermeddle or otherwise. Therefore, the possessor is subject to liability to children who after entering the land are attracted into dangerous intermeddling by such a condition maintained by him although they were ignorant of its existence until after they had entered the land, if he knows or should know that the place is one upon which children are likely to trespass and that the condition is one with which they are likely to meddle.'

The construction site was located in a residential area on premises occupied by a high school with an enrollment of 200 to 250 students and an elementary school with an enrollment of approximately 400 students. A jury could reasonably find that defendant should have anticipated the presence of children in the area and the possibility that one of them might find his way into the construction site. Defendant points to the absence of any evidence of trespass from the time work began on September 5, 1962 until the time plaintiff was injured on October 13, 1962. Monsignor Froeschl, pastor of St. Mary's Church, testified that the school children had been forbidden to go into the construction area and that he knew of no incidents in which any child had been there. These are facts to be considered by a jury in determining whether or not defendant knew or should have known that children were likely to...