Attardo v. Ambriscoe

• Decision Date: 06 December 1960
• Citation: 166 A.2d 458,147 Conn. 708
• Court: Connecticut Supreme Court
• Parties: James ATTARDO v. Albert A. AMBRISCOE. Supreme Court of Errors of Connecticut

Page 458

166 A.2d 458

147 Conn. 708

James ATTARDO v. Albert A. AMBRISCOE.

Supreme Court of Errors of Connecticut.

Dec. 6, 1960.

Helen F. Krause, Trumbull, for appellant (plaintiff).

Kevin T. Gormley, New Haven, with whom were Joseph J. Mager, East Haven, and, on the brief, Martin E. Gormley, New Haven, for appellee (defendant).

Before BALDWIN, C. J., and KING, MURPHY and SHEA, JJ. ^*

SHEA, Associate Justice.

This action was brought on behalf of the plaintiff, a minor, by his father and next friend to recover for personal injuries alleged to have been sustained through the defendant's negligence. The jury returned a verdict for the plaintiff which the trial court set aside, and judgment was rendered for the defendant notwithstanding the verdict. Practice Book § 234. The plaintiff has appealed.

The jury reasonably could have found the following facts: The plaintiff, a boy seven years of age, resided with his parents in a house across the street from property of the defendant on which the defendant was constructing a dwelling house. On July 22, 1952, about 7:30 p. m., the plaintiff and three other children were playing tag in the defendant's house. Construction had reached the stage where the frame had been completed. It was daylight at the time. The defendant's employees had finished work for the day and there was no one around the property. There were no temporary doors or barricades over the unfinished doorways, and no signs were posted to warn people to keep out. The plaintiff fell through an open stair well which had been provided for the stairs leading to the cellar. He sustained serious injuries. Before the day of the accident, children had played around the construction work, but the evidence does not show how often or for what period of time they had played there. In any event, none of them went on the premises while the defendant or his workmen were present. A number of children lived in the neighborhood. There was a schoolhouse about 600 feet from the defendant's property, but school was not in session at the time.

Ordinarily, the owner of property is not bound to anticipate and provide for the presence of trespassers, since he may properly assume that they will not be there. When, however, the owner knows or should know that children are likely to trespass on a part of his property on which he maintains a condition which is likely to be dangerous to them, he may be held liable for harm resulting to them therefrom. Wolfe v. Rehbein, 123 Conn. 110, 113, 193 A. 608. The property owner is not bound to anticipate the presence of children by reason of the fact that a structure or other artificial condition on his land is one which would be likely to attract children. But if he knows or should know that they are likely to trespass, he is bound to anticipate their presence and to refrain from maintaining a condition likely to be dangerous to them because of their propensities for intermeddling and their failure to realize the risk involved. Restatement, 2 Torts § 339, comment a. It is only when the owner knows, or is chargeable with knowledge of, the likelihood that children will trespass on his property that he is under a duty to exercise due care not to do them injury. McPheters v. Loomis, 125 Conn. 526, 533, 7 A.2d 437.

In the present case, the defendant had no actual or constructive knowledge that children played on his property. It is true that where one has sufficient information to lead him to the knowledge of a fact, he is chargeable with knowledge of it. Full and adequate means of knowledge ordinarily are, in law, equivalent to knowledge. Bond Rubber Corporation v. Oates Bros., Inc., 136 Conn. 248, 252, 70 A.2d 115; Myers v. Burke, 120 Conn. 69, 75, 179 A. 88. Children had played around the defendant's house when the defendant and his workmen were away from the place. On occasion, the defendant, after he finished work, went by the house to see whether there was anyone disturbing the property and to check on the material stored there. At no time did he see any trespassers. No information concerning the presence of children was brought to his attention. Furthermore, we have no evidence as to the time when the construction began or over what period children were known to engage in play around it. The...