Appling v. Stuck

• Court: Iowa Supreme Court
• Writing for the Court: SNELL; Cardozo
• Citation: Appling v. Stuck, 164 N.W.2d 810 (Iowa 1969)
• Decision Date: 11 February 1969
• Docket Number: No. 53302,53302
• Parties: Mark APPLING, a Minor, by Sharon Ruth Preminger, his Mother and Next Friend, and Sharon Ruth Preminger, Individually, Appellants, v. Gary L. STUCK and Nancy A. Stuck, Appellees.

Page 810

164 N.W.2d 810

Mark APPLING, a Minor, by Sharon Ruth Preminger, his Mother and Next Friend, and Sharon Ruth Preminger, Individually, Appellants, v. Gary L. STUCK and Nancy A. Stuck, Appellees.

No. 53302.

Supreme Court of Iowa.

Feb. 11, 1969.

Abramson, Myers, Myers & Anderson, Des Moines, for appellants.

Patterson, Lorentzen, Duffield, Timmons & Irish, Des Moines, for appellees.

SNELL, Justice.

Plaintiffs appealed from the sustaining of defendants' motion to dismiss. On appeal the parties agree that appellants' statement of the case and facts is sufficient. We adopt the statement.

This is an action at law by a mother, individually and as next friend of her six-year-old son, to recover damages for personal injuries sustained by the child when he fell from an adult size two-wheel bicycle while attempting to ride the same while at play upon the premises of a neighbor.

Plaintiff, Mark Appling, is a six-year-old child. On September 8, 1967, while playing on the premises of the defendants with their child, the plaintiff child became attracted to an adult size two-wheel bicycle which belonged to defendants and was then on their premises. In attempting to ride the bicycle, the child lost his balance and fell and sustained the personal injuries complained of. Plaintiffs further allege that, at the time of the accident, defendants knew, or in the exercise of ordinary care should have known, that the child was on their property and was attempting to ride the bicycle, that he was unable to do so without assistance and supervision, and that, because of the child's age, he did not appreciate the dangers involved.

The trial court held, as a matter of law, that the doctrine of attractive nuisance was not applicable under the pleadings, and that defendants owed no duty to protect the six-year-old child from the risk of the danger alleged.

I. As this case is before us on the sufficiency of plaintiffs' petition to state a cause of action under attack by motion to dismiss some well settled rules of pleading should be kept in mind and unnecessary uncertainty removed. Our most recent pronouncements state the applicable rules.

In Reed v. Harvey, 253 Iowa 10, 110 N.W.2d 442, the alleged deficiency of plaintiffs' petition was first claimed in a motion for directed verdict. We said:

'When a doubtful pleading is attacked by motion, demurrer or, as permitted by rule 72, Rules of Civil Procedure, in the answer, it will be resolved against the pleader. But after issue is joined without raising any 'points of law appearing on the face of the petition' (rule 72), it will be liberally construed in order to effectuate justice between the parties. The pleader will be accorded the advantage of every reasonable intendment, even to implications, regardless of technical objections or informalities. This is the effect of rule 67.'

Subsequent pronouncements are in accord.

'On a direct attack a doubtful pleading is resolved against the pleader.' Eaton v. Downey, 254 Iowa 573, 579, 118 N.W.2d 583.

'Where as here a doubtful pleading is attacked by motion before issue is joined it will be resolved against the pleader. (Citation) If, however, the petition does allege ultimate facts upon which plaintiff might recover and states a claim under which evidence may be introduced in support thereof, or if attack is delayed, the complaint should be construed in the light most favorable to the plaintiff with doubts resolved in his favor and the allegations accepted as true.' Anthes v. Anthes, 255 Iowa 497, 503, 122 N.W.2d 255, 258.

"A doubtful pleading is resolved against the pleader when attacked before issue is joined or in the answer.' (Citations) When considering a motion to dismiss, well pleaded, relevant and issuable facts are deemed true, (Citation) but conclusions which are not supported by pleaded ultimate facts are not admitted. (Citations) A motion to dismiss which does not disclose wherein the pleading is claimed to be insufficient should be overruled. (Citations)' Hahn v. Ford Motor Co., 256 Iowa 27, 29, 126 N.W.2d 350, 352.

See also Ontario Livestock Comm. Co. v. Flynn, 256 Iowa 116, 124, 125, 126 N.W.2d 362.

In Winneshiek Mutual Ins. Assn. v. Roach, 257 Iowa 354, 132 N.W.2d 436, an 'unduly complicated' case, we considered the sufficiency of a cross-petition in accordance with the rule and were not persuaded that it stated an unenforceable claim except for unsupported conclusions. 'Where as here a doubtful pleading is directly attacked by motion before issue is joined or in the answer as permitted by rule 72, R.C.P., it will be resolved against the pleader.' (loc. cit. 366, 132 N.W.2d 444, loc. cit.) On page 367, of 257 Iowa, on page 444 of 132 N.W.2d this appears:

"* * * a pleader must plead the ultimate facts in the case. He cannot plead conclusions by themselves. A good pleading consists of the statements of the ultimate facts in the case, and, when so stated, the pleader has a right to plead his conclusions based upon those facts' (Citations). * * *'

See also Gardner v. City of Charles City, 259 Iowa 506, 508, 144 N.W.2d 915.

What these rules mean is that a pleading must present a legally justiciable issue. A deficiency will not be supplied by the court.

Under these rules if a pleading is of doubtful sufficiency as a matter of law and is subjected to timely attack the doubt will be resolved against the pleader.

If a pleading alleges sufficient ultimate facts supporting permissible conclusions upon which recovery or relief might be based a different rule applies.

If the petition alleges ultimate facts upon which plaintiffs might recover and states a claim under which evidence may be introduced in support thereof, the petition should be construed in the light most favorable to plaintiffs and doubts resolved in plaintiffs' favor and the allegations accepted as true. Halvorson v. City of Decorah, 258 Iowa 314, 319, 138 N.W.2d 856. See also Luddington v. Moore, Iowa, 155 N.W.2d 428, 431. In Re Lone Tree Community School District, Iowa 159 N.W.2d 522.

In the case before us we think sufficient ultimate facts are alleged in some particulars to require us to proceed under the latter rule. See Division III, infra.

II. Ever since Edgington v. Burlington, Cedar Rapids & Northern Railway Co., 116 Iowa 410, 90 N.W. 95, 57 L.R.A. 561, a turntable case with a thorough review of the authorities and carefully reasoned opinion by Justice Weaver, the 'attractive nuisance' doctrine has been recognized in Iowa. This case has been cited many times but never overruled. See Ashbach v. Iowa Telephone Co., 165 Iowa 473, 485, 146 N.W. 441.

McKiddy v. Des Moines Electric Company, 202 Iowa 225, 229, 206 N.W. 815, 817, after recognizing the doctrine, in referring to the court, the opinion says: 'Of necessity, it has allowed or denied application of the doctrine as the particular facts of each case would justify and require.'

See article by Professor (later U.S. Appellate Judge) Herbert F. Goodrich in 7 Iowa Law Bulletin 65.

Our court has always been reluctant to extend the doctrine of attractive nuisance. Smith v. City of Iowa City, 213 Iowa 391, 393, 239 N.W. 29, Harriman v. Incorporated Town of Afton, 225 Iowa 659, 670, 281 N.W. 183.

A review of the cases indicates that each case has turned on the particular facts and circumstances shown and not according to any rigid classification as an 'attractive nuisance.' The term 'attractive nuisance' would be an obvious misnomer when applied to many instrumentalities involved in situations where liability might follow.

It would be absurd to classify every piece of equipment that might be involved in an injury as an 'attractive nuisance' and unrealistic to say that there can be no responsibility where the equipment is not an 'attractive nuisance.'

We find no case where an ordinary bicycle has been held to be an 'attractive nuisance.' It has frequently been said that judges should know what everyone else knows. Under the shelter of that assumption we know bicycles are common and accepted equipment in households with children, and except for skinned knees, etc., not ordinarily dangerous. Our observations have also convinced us that unattended bicycles appear or have appeared in a high percentage of the yards of Iowa households.

The reluctance of the courts to extend the doctrine of 'attractive nuisance' is illustrated by Dean Prosser in 47 California Law Review 427, 450. Speaking of the factors that '* * * lay the ghost of 'attractive nuisance", he says, 'There are only a few remaining jurisdictions in which that ghost still walks.'

We are unwilling to place a stamp of approval on a theory that an ordinary bicycle left unattended in the yard of a householder constitutes an 'attractive nuisance.'

The allegations of the petition are not sufficient to generate a jury question on the doctrine of 'attractive nuisance.' To that extent the trial court was right.

That conclusion, however, does not answer the problem before us.

III. Plaintiffs' petition is in two divisions. Division I seeks recovery for the injuries suffered by six-year-old Mark Appling. Division II seeks recovery for the expense incurred and damages suffered by his mother. For convenience we will refer to Mark as plaintiff.

Plaintiff's petition alleges as ultimate facts the following:

1. Defendants kept and maintained on their premises an adult sized two-wheeled bicycle.

2. That defendants knew or in the exercise of ordinary care should have known that plaintiff was on their premises and was attempting to ride the bicycle.

3. That defendants knew or in the exercise of ordinary care should have known that plaintiff was unable to ride...