Bellflower v. Pennise, 76-1226

• Decision Date: 09 February 1977
• Docket Number: No. 76-1226,76-1226
• Parties: James BELLFLOWER, a minor, by Shirley Bellflower, next friend, Appellant, v. Santo PENNISE and Antonio Pennise, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 776

548 F.2d 776

James BELLFLOWER, a minor, by Shirley Bellflower, next friend, Appellant, v. Santo PENNISE and Antonio Pennise, Appellees.

No. 76-1226.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 11, 1976.

Decided Feb. 9, 1977.

Thomas C. Boyle (argued), Francis D. Conner, Clayton, Mo., on briefs, for appellant.

Gerre S. Langton, St. Louis, Mo., argued; Evans & Dixon, Sam P. Rynearson, St. Louis, Mo., on briefs, for appellees.

Before VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

This is a diversity action brought for minor plaintiff-appellant by his next friend to recover damages for personal injuries sustained in a fire which ignited when three minor defendants ¹ threw firecrackers into a shack containing spilled gasoline located on land owned by appellees Santo and Antonio Pennise. The district court ² entered an order granting appellees' motion for summary judgment, and dismissing appellant's tort action without trial. We affirm.

James Bellflower was a citizen of Texas and almost fifteen years old in June, 1973 when he visited relatives in South St. Louis County who lived in the vicinity of a large vacant lot held for investment purposes by Santo and Antonio Pennise. The Pennise property had served for quite some time, without permission from the owners, as a gathering place for young people of the neighborhood who operated their motorbikes on it and had constructed a wooden shack at one end of the lot where they kept a cot and occasionally stored gasoline for refueling the motorbikes. During the week prior to his accident, James Bellflower had frequented the lot and utilized the shack.

On June 30, 1973 young Bellflower entered the shack where he tipped over a white plastic jug filled with gasoline which spilled on his leg. Shortly thereafter other youths threw a smoke bomb into the shack through a window and seconds later a firecracker followed which ignited the gasoline causing an explosion in which Bellflower was seriously burned.

Bellflower seeks to recover damages from the Pennises, owners of the vacant lot, on the theory that they maintained a public nuisance on their land in violation of Missouri law, or on the theory that they permitted an artificial condition highly dangerous to trespassing children within the purview of Restatement of Torts (First) § 339 (1934). Bellflower contends that summary judgment was improperly granted because there exist basic disputes of fact which preclude such remedy. The Pennises argue that there is no genuine issue as to any material fact necessary for determination of the case, and that as a matter of law they are entitled to prevail. We agree with the Pennises.

This court has often observed that summary judgment is an extreme remedy and one which is not to be entered unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances. Robert Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207 (8th Cir. 1976); Percival v. General Motors Corp., 539 F.2d 1126 (8th Cir. 1976); Windsor v. Bethesda General Hospital, 523 F.2d 891 (8th Cir. 1975).

We have also noted that summary judgment does not ordinarily provide a very satisfactory approach in tort cases. Hanke v. Global Van Lines, Inc., 533 F.2d 396 (8th Cir. 1976); Williams v. Chick, 373 F.2d 330 (8th Cir. 1967), and we are always a bit troubled when a district court has entered summary judgment in a tort action.

Nevertheless, Fed.R.Civ.P. 56 may be applied in any appropriate case, and a district court is justified in granting summary judgment if, after viewing the evidentiary materials in the light most favorable to the party opposing the motion and giving that party the benefit of all inferences reasonably deducible from the evidence, the district court is convinced that upon a trial of the case to a jury a verdict in favor of the moving party would have to be granted. Robert Johnson Grain Co. v. Chemical Interchange Co.,supra.

In the case before us, Bellflower contends that the Pennises permitted and maintained on their premises a public nuisance created by the activities of trespassing young people who used the property for their own purposes. It is urged that their repeated congregation, operation of motorbikes and erection of a wooden shack used occasionally to store gasoline constituted a public nuisance on the lot giving rise to liability in the landowners for injuries, such as Bellflower, sustained thereon.

Even if in the circumstances conditions on the property were deemed to be a nuisance of sorts and assuming arguendo that the Pennises had actual or constructive knowledge of the presence of the shack and of the use of their property by trespassing youngsters, we find that appellant would not be entitled to recovery under the theory he espouses.

As the district court aptly observed:

The public nuisance theory is premised on the contention that it was created by the continuing and repeated congregation of unsupervised trespassing young people (including plaintiff) who used the property to operate their motorbikes and as a visiting place. No case so holds. The operation of motorbikes on the lot by several teenagers including plaintiff (with the accompanying noise) no doubt was a "nuisance" to the residents in the neighborhood, but that is not the character of the nuisance charged against defendants, nor was it under any view...