Beasley v. Guerriero, 9292

• Court: Court of Appeal of Louisiana
• Writing for the Court: BOLIN
• Citation: Beasley v. Guerriero, 123 So.2d 774, 86 A.L.R.2d 703 (La. App. 1960)
• Decision Date: 27 October 1960
• Docket Number: No. 9292,9292
• Parties: Beauford V. BEASLEY et al., Plaintiff-Appellant, v. Joseph S. GUERRIERO et al., Defendant-Appellees.

Page 774

123 So.2d 774

86 A.L.R.2d 703

Beauford V. BEASLEY et al., Plaintiff-Appellant, v. Joseph S. GUERRIERO et al., Defendant-Appellees.

No. 9292.

Court of Appeal of Louisiana, Second Circuit.

Oct. 27, 1960.

Charles A. Traylor, II, West Monroe, for appellant.

Theus, Grisham, Davis, Leigh & Brown, Monroe, for Charles Bruscato.

George Fink, Monroe, for appellees.

BOLIN, Judge.

Invoking the attractive nuisance doctrine, the plaintiffs sued to recover damages for the death of their tree-year-old daughter, and for the serious injury to a six-year-old daughter, by suffocation in a refrigerator located within a house that was owned by the defendant, Joseph S. Guerriero. Liability was sought against the other defendant on the basis of his employment by the owner to make certain repairs to the premises; it being alleged that he had joint control at the time of the accident, and thereby became a joint tort-feasor. From a ruling by the trial court sustaining an exception of no cause of action against the plaintiffs they have perfected this appeal.

Inasmuch as we must decide whether or not the judgment sustaining the exception was correct, it necessarily follows that our statement of facts will be based upon the allegations taken from the plaintiffs' petition.

Plaintiffs alleged that the two small children lived near the property in question; and that on the afternoon of the fatal accident, they wandered away from their maid and stopped on the premises in order to play in the tall clover, catch bees, and play under the carport; that finding the house unlocked, they entered therein to play, and became fascinated with a large empty refrigerator located therein, and entered same and became trapped by the automatic locking door. These children apparently remained in the locked refrigerator until they were found some time later by another child. After removing the two children from the refrigerator, it was possible to revive the older girl, but the three-year-old girl, Brenda Dawn Beasley, was dead upon arrival at the local hospital.

The plaintiffs set forth that the house was located in a neighborhood where there were living many small children; that the presence of such children was well known to the defendants, and that these children played on the lawn, carport and the entirety of the premises in question. The plaintiffs further alleged that the shelves had been removed from the refrigerator, and that it thereby constituted a death trap for children who might enter therein; that the house wherein the refrigerator was located was vacant and unoccupied, and that the defendants were grossly negligent in failing to keep the premises locked at all times; that same was unlocked on the day of the fatal accident, and had been for several days prior thereto.

The basis of the plaintiffs' contentions that their petition sets forth a cause of action may be summarized by the following quotation of paragraph nineteen:

'That the defendants maintained an attractive nuisance in the following respects:

'1. By failing to keep the law cut and by allowing clover to become very tall thus constituting an attractive area for children to play in and to catch bees.

'2. By allowing the carport of the house to be used as a play area for the children in which they could conveniently ride and play with their toys.

'3. By allowing to remain unlocked the house and all the furnishings therein which was most alluring to the small children.

'4. By maintaining the dangerous empty refrigerator with the shelves removed which was itself an attractive place to the small children and one which invited them to enter.'

Counsel for the plaintiffs, in his brief before us, contends that an exception of no cause of action can only be sustained when all of the well-pleaded facts, taken as true, do not state a cause of action. In connection with this cardinal principle of law, he cited us to the following cases: Peoples State Bank v. St. Landry State Bank, 1898, 50 La.Ann. 528, 24 So. 14; Lusco v. McNeese, La.App.1956, 86 So.2d 226.

This court certainly has no quarrel with the principle above enunciated, because same has been recognized and reaffirmed by our courts on occasions too frequent to enumerate. As a matter of fact, this Court, in the case of O'Bier v. Manufacturers Casualty Co., La.App.1956, 70 So.2d 220, in considering an attractive nuisance case which was before it on the lower court's sustaining an exception of no cause of action, recognized this principle of law when it stated on page 222 of its opinion:

'If is only the well pleaded factual allegations of the petition which are to be accepted as the basis for consideration of the exception. Assertions, conclusions and presumptions which constitute possible bases of defense are not at issue.'

We now pass to the real issue before us, and that is, whether or not the plaintiffs' petition has stated a cause of action under the attractive nuisance doctrine. In this connection, it can safely be said that there was a time, in the early jurisprudence of this state, when there was some doubt as to whether or nor Louisiana had adopted such a doctrine. However, an examination of the cases decided by the Appellate Courts within recent years leaves no doubt that Louisiana has recognized and accepted the attractive nuisance doctrine. See Saxton v. Plum Orchards, Inc., 215 La. 378, 40 So.2d 791, 794, together with the many cases cited therein.

In the Saxton case the Supreme Court thoroughly reviewed the attractive nuisance doctrine, and we feel that the following language taken from the case is a brief, but comprehensive statement of the doctrine as it has been applied and used by our Louisiana Courts:

'With reference to the doctrine generally it is well and ably stated in 38 American Jurisprudence verbo Negligence, Section 142 that: '* * * While the doctrine has been variously stated, courts which accept it generally are in substantial accord with the proposition that one who maintains upon his premises a...