O'Bier v. Manufacturers Cas. Co.
| Decision Date | 26 January 1954 |
| Docket Number | No. 8102,8102 |
| Parties | O'BIER v. MANUFACTURERS CAS. CO. et al. |
| Court | Court of Appeal of Louisiana — District of US |
McConnell & McConnell, Springhill, for plaintiff-appellant.
Blanchard, Goldstein, Walker & O'Quinn, Shreveport, for defendant-appellee.
Plaintiff brought this suit individually and in the capacity of administrator of the estate of his minor child, three-year old Michael O'Bier, seeking damages from the Town of Springhill and its liability insurer for personal injuries alleged to have been sustained by said minor. An exception of no right and no cause of action was filed on behalf of defendant. From a judgment sustaining the exception and dismissing the suit plaintiff has appealed.
Plaintiff's petition alleges the following facts pertinent to the consideration of the exception: That his home is located on Lot 6 of the O'Bier Place Addition in the Town of Springhill, Webster Parish, Louisiana; that on or about October 21, 1952, the Town of Springhill was engaged in the excavation of a ditch for the purpose of laying sewerage and water lines, which ditch or trench was approximately two feet in width and six feet in depth; that the southern extremity of the said ditch was located approximately four feet from the center of Hill Street, approximately fifteen feet from the southwest corner of petitioner's yard and some fifty feet from the house; that dirt was piled to a height of some two feet at the southern excavation of the ditch on Hill Street, on top of which the employees of the Town of Springhill, in the evening of the date set forth, had placed a standardsize, lighted kerosene flare; that children of tender age resided and played in the immediate area to the knowledge of the defendant Town's employees, who were working on the project; that at about 9:30 a. m. on October 22, 1952, plaintiff's three-year old son, Michael, went into the yard to play, while his mother was engaged within the house, and in some manner his clothes were ignited while he was playing with the flare; that before his mother could extingish the flames the child received severe burns, and that the actions of the defendant Town's employees and agents resulted in the creation of an attractive nuisance with respect to which they were guilty of additional negligence in failing to take proper precautions to prevent accident.
In arguing the merits of defendants' exception counsel argued that the standard type kerosene flare involved in this case is in common-place use; that the flares, burning with a smoky flame several inches high, are not dangerous in themselves and that the court should take judicial notice of the fact that children of tender years fear and are repelled by fire. It is also contended that a guard or other precautions were impracticable under the circumstances and that a reasonable person could have presumed the parents, living only some fifty feet distant from the location of the flare, would have observed the same and taken steps to prevent children from playing with the flare.
On the basis of the above representations counsel insists that the application of the attractive nuisance doctrine is not justified.
We think some issues tendered in the argument of counsel for defendant may be resolved without extensive discussion. First, we observe that we cannot justify in our minds the acceptance of the burden of judicial notice to the effect that children of tender years fear and are repelled by fire. To the contrary common experience indicates that fire has a very definite fascination, not only for children of tender years but, in many instances, for both older children and adults. According to the aged English proverb it is only the burnt child that dreads the fire. Next, we are constrained to observe that the arguments as to the heat and smoke serving as a repellent which would keep a child beyond the limit of danger, as well as the argument that the parents of the children here involved should have perceived the danger and protected the child therefrom, are arguments of factual issues which have neither been tendered by the pleadings nor supported by evidence at this state of the proceeding. It 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.
The elements which are essential to the designation of a hazard as constituting an attractive nuisance have been stated many times in the jurisprudence of this state, as well as in recognized text book and reference authorities. The most recent pronouncement of these requisites by appellate courts of Louisiana are to be found in Saxton v. Plum Orchards, Inc., 215 La. 378, 40 So.2d 791; Watts v. Murray, La.App., 43 So.2d 303, and Midkiff v. Watkins, La.App., 52 So.2d 573. The holding of the Supreme Court in the Saxton case and of this court in the Watts case resulted in judgment for the respective plaintiffs. Our brethren of the First Circuit affirmed judgment sustaining an exception in the Midkiff case. However, we think the facts disclosed in the opinion of the court in that case are at such complete variance with those involved in the Saxton and Watts cases, as well as the case which is here under our consideration, as to remove it from any analogy.
The general rules which are applicable to the determination of the existence, vel non, of an attractive nuisance in legal contemplation are so thoroughly considered in the cases cited supra as to need no further elaboration. In the light of the enunciated principles there can be no question as to the compliance by this plaintiff with the requirements which establish the factual basis justifying a recognition of the hazard or danger as constituting an attractive nuisance.
But when we leave the firm and certain support of well-established and clearly stated legal principles we are confronted with the necessity of entering into a sort of twilight zone in which the facts of each individual case must be examined and evaluated. It is...
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