Botticelli v. Winters

• Decision Date: 08 June 1939
• Court: Connecticut Supreme Court
• Parties: BOTTICELLI v. WINTERS.

7 A.2d 443

125 Conn. 537

BOTTICELLI v. WINTERS.

Supreme Court of Errors of Connecticut.

June 8, 1939

Appeal from Superior Court, Hartford County; Kenneth Wynne, Judge.

Action by Louis Botticelli against Eva B. Winters for injuries allegedly caused by negligence of defendant, sustained by plaintiff who was burned when his clothes caught fire when a flame came through holes in bottom of a barrel used as an incinerator, brought to the superior court and tried to the court. From a judgment for the plaintiff, the defendant appeals.

Error and new trial ordered.

Landowner was not liable for injuries to child who sustained burns when child's clothing caught fire from flame which came through holes in barrel used as an incinerator and located in open yard on landowner's premises, on ground that the condition of the premises involved unreasonable risk of serious bodily harm to the child, where there was no finding that child's injuries resulted from failure to use reasonable means to safeguard child.

DeLancey Pelgrift, of Hartford, for appellant.

William M. Pomerantz, of Hartford, for appellee.

Argued Before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

MALTBIE, Chief Justice.

With some minor corrections, but leaving for later discussion one major issue of fact, the finding states the following situation: The defendant owned and controlled a tenement house in Hartford, the janitor of which was George H. Hazel. The Stafford Savings Bank owned and controlled a tenement house on adjoining property, the janitor of which was Nathan Muchnick. In the rear of each tenement house was an open yard and these yards were not separated by any fence or barrier. Some time prior to May 1, 1937, Muchnick had procured a metal barrel and with the consent of Hazel had placed it in the yard in the rear of the defendant's property for the purpose of an incinerator. This barrel was used to burn refuse gathered in the yards of both properties and also by the storekeepers and tenants in both buildings, with the knowledge and consent of Hazel. At this time it was rusted and burned or broken through in many places; there were many holes near the lower edge as large as three by four or five inches; and there was no bottom in the barrel, but it did not rest flush with the ground. The top of the barrel was generally left uncovered while in use as an incinerator. When Hazel or anyone else started a fire in the barrel, he commonly went away and left it unguarded and unattended and took no precautions to keep children away from it.

On May 1st, Before 9 o'clock in the morning, he started a fire in the barrel and went away while it was burning, leaving it unguarded. The barrel was uncovered and the refuse in it continued to burn and smoke until the plaintiff was injured. The neighborhood was thickly populated and young children were accustomed to use the yard of the defendant to play and as a short cut to and from school. On a number of occasions Before May 1st children from the neighborhood played with fire in the barrel, to the knowledge of Hazel. Hazel knew that the children of the neighborhood were using the yard as a playground and as a short cut to and from school. On May 1st the plaintiff, six years old, and a younger companion saw smoke coming from the barrel while they were playing in the yard connected with the tenement house in which they lived. This was in the rear of the defendant's property and separated from it by a fence, but there was an opening in the fence through which children could and did pass to the defendant's property. The plaintiff and his companion passed through this hole. There was at the time fire burning in the barrel and the plaintiff's companion threw some papers into it. As the plaintiff was standing near the barrel, flame came through the holes in its bottom and set fire to the legs of the overalls he was wearing. As a result he was seriously burned, suffering the injuries to recover for which he brought this action. From a judgment in his favor, the defendant has appealed.

The trial court based its conclusion that the defendant was liable upon several grounds. The first was that the defendant was negligent because the act of lighting a fire in the barrel was a violation of an ordinance of the city forbidding any person to kindle a bonfire or allow it to burn on private property within twenty-five feet of any building, and further providing that all bonfires upon private property should at all times, when burning, be guarded by a person not less than fourteen years of age. The word ‘ bonfire’ signifies a fire built in the open air (Webster's New International Dictionary) and as used in the ordinance it cannot reasonably be construed to mean fires kindled in barrels provided for the purpose of burning refuse such as the one involved in this case; that would be to outlaw all incinerators in open yards within the city limits.

Another conclusion of the trial court was that the manner in which the defendant maintained the barrel upon the premises constituted a nuisance; but the...